<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 16)
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
(CALCULATION OF FILING FEE)
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<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
---------------------- ----------------------
<S> <C>
$1,489,395,006.00 $297,879.00
</TABLE>
* FOR PURPOSES OF CALCULATING THE FILING FEE ONLY. THIS CALCULATION ASSUMES
THE PURCHASE OF 45,133,182 SHARES (AND ASSOCIATED RIGHTS) OF COMMON STOCK,
PAR VALUE $2.50 PER SHARE ("SHARES"), OF CBI INDUSTRIES, INC. (THE
"COMPANY") (EQUAL TO THE SUM OF (I) 38,703,969 SHARES ISSUED AND
OUTSTANDING AS OF DECEMBER 26, 1995, ACCORDING TO THE COMPANY, (II)
5,144,763 SHARES RESERVED FOR ISSUANCE UPON THE CONVERSION OF THE ISSUED
AND OUTSTANDING SHARES OF $2.27 CONVERTIBLE PREFERRED VOTING PREFERRED
STOCK, PAR VALUE $1.00 PER SHARE, ACCORDING TO THE COMPANY, AND (III)
1,284,450 SHARES SUBJECT TO ISSUANCE UPON EXERCISE OF OPTIONS FOR SHARES
ACCORDING TO THE COMPANY), AT $33.00 PER SHARE.
** 1/50 OF ONE PERCENTUM OF THE TRANSACTION VALUATION. OF THIS AMOUNT,
$286,740.14 WAS PREVIOUSLY PAID IN CONNECTION WITH THE INITIAL FILING OF
THE SCHEDULE 14D-1 ON NOVEMBER 3, 1995. ACCORDINGLY, AN ADDITIONAL FEE OF
$11,138.86 HAS BEEN PAID IN CONNECTION WITH THIS FILING.
[X] CHECK BOX IF ANY PART OF THE FEE IS OFFSET AS PROVIDED BY RULE 0-11(A)(2)
AND IDENTIFY THE FILING WITH WHICH THE OFFSETTING FEE WAS PREVIOUSLY PAID.
IDENTIFY THE PREVIOUS FILING BY REGISTRATION STATEMENT NUMBER, OR THE FORM
OR SCHEDULE AND DATE OF ITS FILING.
AMOUNT PREVIOUSLY PAID: FILING PARTY:
FORM OR REGISTRATION NO.: DATE FILED:
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<PAGE>
This Amendment No. 16 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, as amended and
supplemented by the Supplement thereto dated December 28, 1995 (the
"Supplement") and the related revised Letter of Transmittal, which are annexed
to and filed with this Amendment No. 16 as Exhibits (a)(28) and (a)(29).
Capitalized terms used and not defined herein shall have the meanings set
forth in the Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(b) Reference is hereby made to the information set forth in the
"Introduction," Section 1 ("Amended Terms of the Offer; Expiration Date") and
Section 7 ("The Merger Agreement") of the Supplement, which is incorporated
herein by reference.
(c) Reference is hereby made to the information set forth in Section 2
("Price Range of Shares; Dividends") of the Supplement, which is incorporated
herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) Reference is hereby made to the information set forth in the
"Introduction," Section 1 ("Amended Terms of the Offer; Expiration Date"),
Section 4 ("Certain Information Concerning the Purchaser and Praxair"),
Section 5 ("Background of the Offer since November 3, 1995; Contacts with the
Company"), Section 6 ("Plans for the Company"), Section 7 ("The Merger
Agreement") and Section 8 ("Certain Conditions to the Offer") of the
Supplement, which is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) Reference is hereby made to the information set forth in Section 9
("Source and Amount of Funds") of the Supplement, which is incorporated herein
by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE PARENT.
(a)-(g) Reference is hereby made to the information set forth in the
"Introduction," Section 1 ("Amended Terms of the Offer; Expiration Date"),
Section 5 ("Background of the Offer since November 3, 1995; Contacts with the
Company"), Section 6 ("Plans for the Company"), Section 7 ("The Merger
Agreement") and Section 8 ("Certain Conditions to the Offer") of the
Supplement, which is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) Reference is hereby made to the information set forth in Section 4
("Certain Information Concerning the Purchaser and Praxair") of the
Supplement, which is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Reference is hereby made to the information set forth in the "Introduction,"
Section 4 ("Certain Information Concerning the Purchaser and Praxair"),
Section 6 ("Plans for the Company"), Section 7 ("The Merger Agreement") and
Section 8 ("Certain Conditions to the Offer") of the Supplement, which is
incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN PARENTS.
Reference is hereby made to the information set forth in Section 4 ("Certain
Information Concerning the Purchaser and Praxair") of the Supplement, which is
incorporated herein by reference.
1
<PAGE>
ITEM 10. ADDITIONAL INFORMATION.
(b)-(c) Reference is hereby made to the information set forth in Section 10
("Certain Legal Matters; Required Regulatory Approvals") of the Supplement,
which is incorporated herein by reference.
(f) Reference is hereby made to the entire text of the Supplement, which is
incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(27) -- Agreement and Plan of Merger among Praxair, Inc., PX Acquisition
Corp. and CBI Industries, Inc. dated as of December 22, 1995.
(a)(28) -- Supplement to Offer to Purchase dated December 28, 1995.
(a)(29) -- Revised Letter of Transmittal.
(a)(30) -- Revised Notice of Guaranteed Delivery.
(a)(31) -- Form of Second Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Nominees.
(a)(32) -- Form of Second Letter to Clients for Use by Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
(a)(33) -- Form of Summary Advertisement dated December 28, 1995.
(a)(34) -- IRS Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
2
<PAGE>
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 28, 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
3
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INDEX TO EXHIBITS
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<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGES
------- ----------- ------------
<C> <S> <C>
(a)(27) Agreement and Plan of Merger among Praxair, Inc., PX
Acquisition Corp. and CBI Industries, Inc. dated as of
December 22, 1995.
(a)(28) Supplement to Offer to Purchase dated December 28,
1995.
(a)(29) Revised Letter of Transmittal.
(a)(30) Revised Notice of Guaranteed Delivery.
(a)(31) Form of Second Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(32) Form of Second Letter to Clients for Use by Brokers,
Dealers, Commercial Banks, Trust Companies and
Nominees.
(a)(33) Form of Summary Advertisement dated December 28, 1995.
(a)(34) IRS Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
</TABLE>
<PAGE>
EXHIBIT 99.(A)(27)
AGREEMENT AND PLAN OF MERGER
Among
Praxair, Inc.,
PX Acquisition Corp.
and
CBI Industries, Inc.
Dated as of December 22, 1995
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of December 22, 1995, among CBI Industries, Inc., a
Delaware corporation (the "Company"), Praxair, Inc., a Delaware corporation
("Praxair"), and PX Acquisition Corp., a Delaware corporation and a wholly-
owned subsidiary of Praxair ("Purchaser"). The Company and Purchaser are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
RECITALS
WHEREAS, the respective Boards of Directors of each of Praxair,
Purchaser and the Company have approved the acquisition of the Company by
Praxair upon the terms and subject to the conditions set forth herein;
WHEREAS, on November 3, 1995, Purchaser commenced an offer to
purchase (the "Initial Offer") all outstanding shares of Common Stock, par
value $2.50 per share (the "Shares"), of the Company together with the
associated rights (the "Rights") issued pursuant to the Rights Agreement,
dated as of March 4, 1986, as amended, between the Company and First
Chicago Trust Company of New York, as Rights Agent (as the same may be
further amended, the "Rights Agreement"), at a purchase price of $32 per
Share (and associated Right) (all references herein to "Rights" shall
include all benefits that may inure to holders of the Rights pursuant to
the Rights Agreement and, unless the context otherwise requires, all
references to "Shares" shall include the associated Rights), net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated November 3, 1995 (the
"Offer to Purchase") and in the related Letter of Transmittal
(collectively, the "Initial Offer Documents"); and
WHEREAS, the respective Boards of Directors of each of Praxair,
Purchaser and the Company have determined that it is in the best interests
of their respective stockholders for Purchaser to acquire the Company, upon
and subject to the terms and conditions of this Agreement, pursuant to the
Initial Offer, as amended pursuant to the terms of this Agreement (the
"Amended Offer"); and
WHEREAS, in furtherance of such acquisition, the respective
Boards of Directors of each of Praxair, Purchaser and the Company have
approved the merger of Purchaser with
<PAGE>
and into the Company (the "Merger") pursuant to this Agreement and the
Delaware General Corporation Law, as amended (the "DGCL"); and
WHEREAS, the Board of Directors of the Company (the "Board")
has, in light of and subject to the terms and conditions set forth herein,
(i) determined that the consideration to be paid for each Share in the
Amended Offer and the Merger is fair to, and in the best interests of, the
stockholders of the Company and (ii) has approved and adopted this
Agreement and the transactions contemplated hereby and has recommended
acceptance of the Amended Offer and approval and adoption by the
stockholders of the Company of this Agreement and the Merger; and
WHEREAS, each of the Company, Praxair and Purchaser desires to
make certain representations, warranties, covenants and agreements in
connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
mutual representations, warranties, covenants, agreements and conditions
contained herein, the parties hereto agree as follows:
ARTICLE I
The Amended Offer; Actions by the Company; Directors
1.1. The Amended Offer. (a) Praxair and Purchaser have
filed with the Securities and Exchange Commission (the "Commission") a
Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with
respect to the Initial Offer which contains (included as exhibits) the
Initial Offer Documents. As promptly as practicable (but no later than the
fourth business day after the date of this Agreement), Praxair and
Purchaser shall file with the Commission an amendment to the Initial Offer
Documents (as so amended, and as the same may be further amended or
supplemented in accordance with the terms of this Agreement, the "Amended
Offer Documents"). The Company shall have the opportunity to review the
amendment to the Schedule 14D-1 to be filed in connection with the Amended
Offer prior to its being filed with the Commission. The Amended Offer
Documents shall contain a supplement to the Offer to Purchase, which shall
be mailed to the holders of Shares and which shall amend the Initial Offer
(i) to increase the price per Share payable in connection with the Amended
Offer to $33.00, (ii) to provide that the obligation of Praxair and
Purchaser to accept for payment and pay for Shares
<PAGE>
tendered pursuant to the Amended Offer shall only be subject to the
conditions set forth in Annex A hereto, and (iii) to change the expiration
date of the Amended Offer to midnight, New York City time, on a date that
is 10 business days following the filing of the amendment (as so extended,
and as it may be extended from time to time in accordance with the terms of
this Agreement, the "Expiration Date"); it being understood and agreed
that, except for the foregoing amendments or as otherwise provided herein,
the Amended Offer shall be on the same terms as the Initial Offer. Without
the prior written consent of the Company, Purchaser shall not decrease the
price per Share or change the form of consideration payable in the Amended
Offer, decrease the number of Shares sought or extend the Amended Offer
(other than as set forth below), amend or waive the Minimum Tender
Condition (as defined in Annex A), impose additional conditions to the
Amended Offer or amend any other term of the Amended Offer in any manner
adverse to the holders of Shares. Upon the terms and subject to the
conditions of the Amended Offer, Purchaser will accept for payment and will
purchase, as soon as permitted under the terms of the Amended Offer, all
Shares validly tendered and not withdrawn prior to the expiration of the
Amended Offer.
(b) Each of Praxair and Purchaser, on the one hand, and
the Company, on the other hand, agrees promptly to correct any information
provided by it for use in the Amended Offer Documents if and to the extent
that it shall have become false or misleading in any material respect, and
Praxair and Purchaser further agree to take all steps necessary to cause
the Amended Offer Documents as so corrected to be filed with the Commission
and to be disseminated to stockholders of the Company, in each case as and
to the extent required by applicable federal securities laws.
(c) Praxair and Purchaser agree that Purchaser shall not
terminate or withdraw the Amended Offer or extend the then scheduled
Expiration Date unless at the Expiration Date the conditions to the Amended
Offer described in Annex A hereto shall not have been satisfied or earlier
waived. If at the Expiration Date, the conditions to the Amended Offer
described in Annex A hereto shall not have been satisfied or earlier
waived, Purchaser may and, if requested by the Company, shall extend the
Expiration Date on one or more occasions for an additional period or
periods of time until the earlier of (i) the date which is sixty business
days following the date of the Amended Offer or (ii) the date this
Agreement is terminated in accordance with its terms; provided, that, this
sentence shall not be applicable in the event the conditions set forth in
<PAGE>
paragraph (v)(g) of Annex A hereto shall not have been satisfied or earlier
waived at the Expiration Date. Praxair and Purchaser shall use their
reasonable best efforts to consummate the Amended Offer in accordance with
the terms of this Agreement and the conditions to the Amended Offer set
forth in Annex A.
1.2. Actions by the Company. (a) The Company hereby
approves of and consents to the Amended Offer and represents that (i) the
Board by vote of all directors at a meeting duly called and held, has, in
light of and subject to the terms and conditions set forth herein,
unanimously (x) determined that each of the Amended Offer and the Merger is
fair to, and in the best interests of, the stockholders of the Company and
(y) approved this Agreement and the transactions contemplated hereby,
including the Amended Offer and the Merger, and recommends acceptance of
the Amended Offer and approval and adoption of this Agreement and the
Merger by the stockholders of the Company and (ii) Merrill Lynch & Co.
("Merrill Lynch") and Lehman Brothers Inc. ("Lehman Bros."), the Company's
financial advisors, have rendered to the Board their respective opinions
that the consideration to be received by the stockholders of the Company
pursuant to the Amended Offer and the Merger is fair to such stockholders
from a financial point of view.
(b) The Company agrees that it shall, on the same day that
Purchaser and Praxair file with the Commission an amendment to the Initial
Offer Documents pursuant to Section 1.1 hereof, file with the Commission an
amendment to its Solicitation/Recommendation Statement on Schedule 14D-9,
dated November 16, 1995 (including exhibits, as so amended, and as amended
from time to time, the "Amended Schedule 14D-9"), which amendment shall
include (i) subject to the proviso in the second sentence of
Section 1.2(c), the recommendation described in Section 1.2(a) hereof and
(ii) the information with respect to the Company and its officers and
directors, (including any directors to be elected or appointed pursuant to
Section 1.3 hereof) in form and substance satisfactory to Praxair and its
counsel, that is required under Section 14(f) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14f-1 promulgated
thereunder. In such connection, Praxair and Purchaser shall promptly
furnish the Company with all information concerning their designees
required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder.
Praxair and Purchaser shall have the opportunity to review the Amended
Schedule 14D-9 prior to its being filed with the Commission.
<PAGE>
(c) The Company agrees that copies of such Schedule 14D-9
(excluding exhibits), shall be enclosed with the Amended Offer Documents to
be mailed by Purchaser to the stockholders of the Company in connection
with the Amended Offer. Each of the Company, one the one hand, and Praxair
and Purchaser, on the other hand, agrees promptly to correct any
information provided by either of them for use in the Amended Schedule 14D-
9 if and to the extent that it shall have become false or misleading in any
material respect, and the Company further agrees to take all steps
necessary to cause the Amended Schedule 14D-9 as so corrected to be filed
with the Commission and to be disseminated to the stockholders of the
Company, in each case as and to the extent required by applicable federal
securities laws; provided, however, that, subject to the provisions of
Article IX, such recommendation may be withdrawn, modified or amended to
the extent that the Board deems it necessary to do so in the exercise of
its fiduciary and other legal obligations after being so advised by outside
counsel. In connection with the Amended Offer, the Company will furnish
Praxair and Purchaser with such information, including lists of the
stockholders of the Company, mailing labels and lists of security
positions, and such assistance as Praxair or Purchaser or their agents may
request in communicating the Amended Offer to the record and beneficial
holders of the Shares.
1.3. Directors. Promptly upon the purchase of and payment
for any Shares by Purchaser pursuant to the Amended Offer which represent
at least a majority of the Shares (on a fully diluted basis) and from time
to time thereafter, Praxair and Purchaser shall be entitled to designate
members of the Board such that Praxair and Purchaser, subject to compliance
with Section 14(f) of the Exchange Act, will have a number of
representatives on the Board, rounded up to the next whole number, equal to
the product of (x) the total number of directors on the Board multiplied by
(y) the percentage of the outstanding Shares beneficially owned by
Purchaser or its affiliates; provided, that, any action to be taken prior
to the Effective Time (as defined in Section 2.3 hereof) by the Board with
respect to this Agreement shall be approved by a majority of those
directors of the Company who have not been designated by Praxair or
Purchaser. Notwithstanding the foregoing, until the Effective Time, the
Company and Praxair shall use all reasonable efforts to retain as members
of Company's Board of Directors at least two directors who at the time are
neither officers of Praxair or the Company (or any of their respective
affiliates), nor designees of Purchaser (or any of its affiliates), nor
shareholders or affiliates of Purchaser (or any respective affiliate) (the
"Disinterested
<PAGE>
Directors"). The Company shall, upon request by Praxair or Purchaser,
promptly increase the size of the Board to the extent permitted by the
Company's Restated Certificate of Incorporation (the "Company Charter")
and, to the extent required to comply with this Section 1.3, secure the
resignations of such number of directors as is necessary to enable
Praxair's designees to be elected to the Board and shall cause Praxair's
designees to be so elected.
ARTICLE II
The Merger; Closing; Effective Time
2.1. The Merger. Upon the terms and subject to the condi-
tions set forth in this Agreement, at the Effective Time (as defined in
Section 2.3 hereof) Purchaser shall be merged with and into the Company and
the separate corporate existence of Purchaser shall thereupon cease. The
Company shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the "Surviving Corporation") and shall continue
to be governed by the laws of the State of Delaware, and the separate
corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger,
except as set forth in Article III. The name of Surviving Corporation
shall be "CBI Industries, Inc." The Merger shall have the effects
specified in the DGCL.
2.2. Closing. The closing of the Merger (the "Closing")
shall take place (i) at the offices of Sullivan & Cromwell, 125 Broad
Street, New York, New York at 9:00 A.M. on the first business day following
the date on which the last to be fulfilled or waived of the conditions set
forth in Article VIII hereof (other than those conditions that by their
nature are to be satisfied at the Closing, but subject to the fulfillment
or waiver of those conditions) shall be satisfied or waived in accordance
with this Agreement or (ii) at such other place and time and/or on such
other date as the Company and Praxair may agree in writing (the "Closing
Date").
2.3. Effective Time. As soon as practicable following the
Closing, and provided that this Agreement has not been terminated or
abandoned pursuant to Article IX hereof, the Company and Praxair will cause
a Certificate of Merger (the "Delaware Certificate of Merger") to be execu-
ted, acknowledged and filed with the Secretary of State of Delaware as
provided in Section 251 of the DGCL. The Merger shall become effective at
the time when the Delaware
<PAGE>
Certificate of Merger has been duly filed with the Secretary of State of
Delaware (the "Effective Time").
ARTICLE III
Certificate of Incorporation and By-Laws
of the Surviving Corporation
3.1. The Certificate of Incorporation. The Company
Charter, as in effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation (the "Charter"),
until duly amended as provided therein or by applicable law, except that
the first paragraph of Article Fourth of the Charter shall be amended to
read in its entirety as follows: "The aggregate number of shares that the
Corporation shall have the authority to issue is Twenty Million and One
Thousand (20,001,000), of which One Thousand (1,000) shares shall be Common
Stock, par value $2.50 per share and Twenty Million (20,000,000) shares
shall be Preferred Stock, par value $1.00 per share."
3.2. The By-Laws. The by-laws of Purchaser in effect at
the Effective Time shall be the by-laws of the Surviving Corporation (the
"By-Laws"), until thereafter amended as provided therein or by applicable
law.
ARTICLE IV
Officers and Directors
of the Surviving Corporation
4.1. Directors. The directors of Purchaser at the Effec-
tive Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation and shall hold office until their successors have
been duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Charter and By-Laws.
4.2. Officers. The officers of the Company at the
Effective Time shall, from and after the Effective Time, be the officers of
the Surviving Corporation and shall hold office until their successors have
been duly appointed and qualified or until their earlier death, resignation
or removal in accordance with the Charter and By-Laws.
4.3. Further Assurances. If, at any time after the
Effective Time, the Surviving Corporation shall consider
<PAGE>
or be advised that any deeds, bills of sale, assignments, assurances or any
other actions or things are necessary or desirable to vest, perfect or
confirm of record or otherwise in the Surviving Corporation its right,
title or interest in, to or under any of the rights, properties or assets
of either of the Constituent Corporations acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers of the Surviving
Corporation shall be authorized to execute and deliver, in the name and on
behalf of each of the Constituent Corporations or otherwise, all such
deeds, bills of sale, assignments and assurances and to take and do, in the
name and on behalf of each of the Constituent Corporations or otherwise,
all such other actions and things as may be necessary or desirable to vest,
perfect or confirm any and all right, title and interest in, to and under
such rights, properties or assets in the Surviving Corporation or otherwise
to carry out this Agreement.
ARTICLE V
Conversion or Cancellation of Shares in the Merger
5.1. Conversion or Cancellation of Shares. The manner of
converting or canceling shares of the Company and Purchaser in the Merger
shall be as follows:
(a) Conversion of Shares; Merger Consideration. At the
Effective Time, each Share issued and outstanding immediately prior to the
Effective Time (other than Shares owned by Praxair, Purchaser or any other
Subsidiary (as defined in Section 6.1(a) hereof) of Praxair (collectively,
the "Praxair Companies")) or Shares which are held by stockholders
("Dissenting Stockholders") exercising appraisal rights pursuant to
Section 262 of the DGCL) shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into the right to
receive, without interest, an amount in cash (the "Merger Consideration")
equal to $33.00 or such greater amount which may be paid pursuant to the
Amended Offer. All such Shares, by virtue of the Merger and without any
action on the part of the holders thereof, shall no longer be outstanding
and shall be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such Shares shall thereafter cease to
have any rights with respect to such Shares, except the right to receive
the Merger Consideration for such Shares upon the surrender of such
certificate in accordance with Section 5.2 or the right, if any, to receive
payment from the Surviving Corporation of
<PAGE>
the "fair value" of such Shares as determined in accordance with
Section 262 of the DGCL.
(b) Cancellation of Shares. At the Effective Time, each
Share issued and outstanding at the Effective Time and owned by any of the
Praxair Companies, and each Share issued and held in the Company's treasury
at the Effective Time, shall, by virtue of the Merger and without any
action on the part of the holder thereof, cease to be outstanding, shall be
canceled and retired without payment of any consideration therefor and
shall cease to exist.
(c) Conversion of Purchaser Common Stock. At the
Effective Time, each share of Common Stock, par value $0.01 per share, of
Purchaser issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of
Purchaser or the holders of such shares, be converted into one issued and
outstanding share of common stock of the Surviving Corporation.
(d) Convertible Preferred Stock. At the Effective Time,
each share of $2.27 Convertible Voting Preferred Stock, Series C of the
Company, par value $1.00 per share (the "Convertible Preferred Shares"),
shall remain outstanding and shall be entitled to the same dividend and
other relative rights, preferences, limitations and restrictions as are now
provided by the Company Charter; provided, that, after the Effective Time,
the Convertible Preferred Shares shall no longer be convertible into
Shares; and provided, further, that each Convertible Preferred Share shall
be convertible, after the Effective Time, into the amount of cash that the
holder thereof might have been entitled to receive if such holder had
converted such Convertible Preferred Shares into Shares immediately prior
to the Effective Time.
(e) Cumulative Preferred Stock. Each share of 7.48%
Cumulative Preferred Stock, Series D of the Company, par value $1.00 per
share (the "Series D Preferred Shares"), and $6.75 Cumulative Preferred
Stock, Series E of the Company, par value $1.00 per share (the "Series E
Preferred Shares" and together with the Series D Preferred Shares, the
"Cumulative Preferred Shares" and the Cumulative Preferred Shares, together
with the Convertible Preferred Shares and the Junior Participating
Preferred Stock, Series A of the Company, par value $1.00 per share, the
"Preferred Shares"), which immediately prior to the Effective Time is
issued and outstanding shall remain outstanding and shall be entitled to
the same dividend and other relative rights, preferences,
<PAGE>
limitations and restrictions as are now provided by the Company Charter.
5.2. Payment for Shares. Praxair shall make available or
cause to be made available to the paying agent appointed by Praxair (the
"Paying Agent") amounts sufficient in the aggregate to provide all funds
necessary for the Paying Agent to make payments pursuant to Section 5.1(a)
hereof to holders of Shares issued and outstanding immediately prior to the
Effective Time. Promptly after the Effective Time, the Surviving
Corporation shall cause to be mailed to each Person who was, at the
Effective Time, a holder of record (other than any of the Praxair
Companies) of issued and outstanding Shares a form (mutually agreed to by
Purchaser and the Company) of letter of transmittal and instructions for
use in effecting the surrender of the certificates which, immediately prior
to the Effective Time, represented any of such Shares in exchange for
payment therefor. Upon surrender to the Paying Agent of such certificates,
together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, the Surviving Corporation shall
promptly cause to be paid to the persons entitled thereto a check in the
amount to which such persons are entitled, after giving effect to any
required tax withholdings. No interest will be paid or will accrue on the
amount payable upon the surrender of any such certificate. If payment is
to be made to a Person other than the registered holder of the certificate
surrendered, it shall be a condition of such payment that the certificate
so surrendered shall be properly endorsed or otherwise in proper form for
transfer and that the Person requesting such payment shall pay any transfer
or other taxes required by reason of the payment to a Person other than the
registered holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation or the Paying Agent that such tax
has been paid or is not applicable. One hundred and eighty days following
the Effective Time, the Surviving Corporation shall be entitled to cause
the Paying Agent to deliver to it any funds (including any interest
received with respect thereto) made available to the Paying Agent which
have not been disbursed to holders of certificates formerly representing
Shares outstanding on the Effective Time, and thereafter such holders shall
be entitled to look to the Surviving Corporation only as general creditors
thereof with respect to the cash payable upon due surrender of their
certificates. Notwithstanding the foregoing, neither the Paying Agent nor
any party hereto shall be liable to any holder of certificates formerly
representing Shares for any amount paid to a public official pursuant to
any applicable abandoned property, escheat or similar law. The Surviving
<PAGE>
Corporation shall pay all charges and expenses, including those of the
Paying Agent, in connection with the exchange of cash for Shares and
Praxair shall reimburse the Surviving Corporation for such charges and
expenses.
For the purposes of this Agreement, the term "Person" shall
mean any individual, corporation (including not-for-profit), general or
limited partnership, limited liability company, going venture, estate,
trust, association, organization, Governmental Entity (as defined in
Section 6.1(d)) or other entity of any kind or nature.
5.3. Dissenters' Rights. If any Dissenting Stockholder
shall be entitled to be paid the "fair value" of his or her Shares, as
provided in Section 262 of the DGCL, the Company shall give Praxair notice
thereof and Praxair shall have the right to participate in all negotiations
and proceedings with respect to any such demands. The Company shall give
Praxair prompt notice of any demands received by the Company for appraisal
of Shares and Praxair shall have the right to participate in all
negotiations and proceedings with respect to such demands. Neither the
Company nor the Surviving Corporation shall, except with the prior written
consent of Praxair, voluntarily make any payment with respect to, or settle
or offer to settle, any such demand for payment. If any Dissenting
Stockholder shall fail to perfect or shall have effectively withdrawn or
lost the right to dissent, the Shares held by such Dissenting Stockholder
shall thereupon be treated as though such Shares had been converted into
the Merger Consideration pursuant to Section 5.1 hereof.
5.4. Transfer of Shares After the Effective Time. No
transfers of Shares shall be made on the stock transfer books of the
Surviving Corporation at or after the Effective Time.
ARTICLE VI
Representations and Warranties
6.1. Representations and Warranties of the Company. The
Company hereby represents and warrants to Praxair and Purchaser that,
except as set forth in the disclosure letter delivered to Praxair by the
Company on or prior to entering into this Agreement (the "Company
Disclosure Letter"):
(a) Organization, Good Standing and Qualification. Each
of the Company and its Subsidiaries (as defined
<PAGE>
below) is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization and
has all requisite corporate or similar power and authority to own, lease
and operate its properties and assets and to carry on its business as
presently conducted and is qualified to do business and is in good standing
as a foreign corporation in each jurisdiction where the ownership or
operation of its properties or conduct of its business requires such
qualification, except where the failure to be so qualified or in good
standing will not, when taken together with all other such failures have a
Company Material Adverse Effect (as defined below). The Company has made
available to Praxair a complete and correct copy of the Company's
certificate of incorporation and by-laws, each as amended to date. The
Company's certificate of incorporation and by-laws so delivered are in full
force and effect. Section 6.1(a) of the Company Disclosure Letter contains
a correct and complete list of each of its Subsidiaries (except for such
Subsidiaries that are immaterial) and each jurisdiction where the Company
and each of its Subsidiaries is organized.
As used in this Agreement, (i) the term "Subsidiary" means,
with respect to the Company, Praxair or Purchaser, as the case may be, any
entity, whether incorporated or unincorporated, domestic or foreign, of
which at least a majority of the securities or ownership interests having
by their terms ordinary voting power to elect a majority of the Board of
Directors or other persons performing similar functions is directly or
indirectly owned or controlled by such party or by one or more of its
respective Subsidiaries or by such party and any one or more of its
respective Subsidiaries and (ii) the term "Company Material Adverse Effect"
means a material adverse effect on the financial condition, business,
prospects or results of operations of the Company and its Subsidiaries
taken as a whole.
(b) Capital Structure. The authorized capital stock of
the Company consists of 240,000,000 Shares and 20,000,000 shares of
preferred stock, par value $1.00. As of September 30, 1995, there were
issued and outstanding 38,295,207 Shares; 3,484,713 Convertible Preferred
Shares; 550,000 Series D Preferred Shares; and 200,000 Series E Preferred
Shares. Each of the outstanding Convertible Preferred Shares are
convertible into 1.5 Shares. All of the issued and outstanding Shares and
Preferred Shares have been duly authorized and are validly issued, fully
paid and nonassessable and free of preemptive rights with respect thereto.
As of September 30, 1995, 1,488,407 Shares were held in the treasury of the
Company. As of the date hereof,
<PAGE>
there were outstanding options to purchase 1,216,350 Shares under the
Company's Stock Option Plan, effective as of January 1, 1987 (the "1987
Stock Option Plan") and outstanding options to purchase 70,500 Shares under
the Company's 1995 Stock Option Plan, effective as of January 1, 1995
(together with the 1987 Stock Option Plan, the CBI Restricted Stock Award
Plan (1978), the CBI 1983 Restricted Stock Award Plan, the CBI 1989
Restricted Stock Award Plan and the CBI 1994 Restricted Stock Award Plan,
the "Stock Plans"). The Company has no Shares or Preferred Shares reserved
for issuance, other than Shares reserved for issuance upon the exercise of
the conversion rights of holders of the Convertible Preferred Shares,
Shares and Preferred Shares reserved for issuance in connection with the
Rights granted pursuant to the Rights Agreement (which agreement will be
amended as described in Section 7.10(a) hereof), and Shares reserved for
issuance pursuant to the Company's 1994 Restricted Stock Award Plan,
effective March 9, 1994. Section 6.1(b) of the Company Disclosure Letter
contains a correct and complete list of each outstanding option to purchase
Shares under the Stock Plans (each a "Company Option"), including the
holder, date of grant, exercise price, the number of Shares subject thereto
and the number of stock appreciation rights, if any, granted in respect of
such Company Option. Except as set forth in Section 6.1(b) of the Company
Disclosure Letter, each of the outstanding shares of capital stock or other
securities of each of the Company's Subsidiaries is duly authorized,
validly issued, fully paid and nonassessable and owned by a direct or
indirect wholly-owned subsidiary of the Company, free and clear of any
lien, pledge, security interest, claim or other encumbrance. Except as set
forth above and except as set forth in Section 6.1(b) of the Company
Disclosure Letter, there are no preemptive or other outstanding rights,
options, warrants, conversion rights, stock appreciation rights, redemption
rights, repurchase rights, agreements, arrangements or commitments to issue
or sell any shares of capital stock or other securities of the Company or
any of its Subsidiaries or any securities or obligations convertible or
exchangeable into or exercisable for, or giving any Person a right to
subscribe for or acquire, any securities of the Company or any of its
Subsidiaries, and no securities or obligations evidencing such rights are
authorized, issued or outstanding. Except as set forth in Section 6.1(b)
of the Company Disclosure Letter, the Company does not have outstanding any
bonds, debentures, notes or other obligations the holders of which have the
right to vote (or convertible into or exercisable for securities having the
right to vote) with the stockholders of the Company on any matter ("Voting
Debt").
<PAGE>
(c) Corporate Authority; Approval and Fairness. The
Company has full requisite corporate power and authority and has taken all
corporate action necessary in order to execute, deliver and perform its
obligations under this Agreement and to consummate, subject only to
approval of this Agreement by the Company Requisite Vote (as defined in
Section 6.1(k) hereof), the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized and
approved by the Board, and other than the Company Requisite Vote (as
defined in Section 6.1(k)), no other corporate proceedings are necessary to
authorize this Agreement or the consummation of the transactions
contemplated hereby. Assuming this Agreement constitutes a legal, valid
and binding agreement of Praxair and Purchaser, this Agreement constitutes
a legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforcement may be limited
by general principles of equity, whether applied in a court of law or a
court of equity, and by bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally.
(d) Governmental Filings; No Violations. (i) Other than
the filings and/or notices (A) pursuant to Section 2.3 hereof, (B) under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), (C) in connection, or in compliance, with the provisions of the
Exchange Act, (D) as may be required under any Environmental Law (as
defined in Section 6.1(l) hereof) pertaining to any notification,
disclosure or required approval triggered by the Merger or the transactions
contemplated hereby, (E) filing with, and approval of, the New York Stock
Exchange, Inc. and the Commission with respect to the de-listing and de-
registration of the Shares, (F) the Investment Canada Act ("ICA"), (G) such
consents, approvals, orders, authorizations, notifications, registrations,
declarations and filings as may be required under the corporation, takeover
or blue sky laws of various states or non-U.S. changes in control laws or
regulations and (H) to comply with the change of control, notification,
competition or other laws of jurisdictions listed in Section 6.1(d) of the
Company Disclosure Letter (collectively, the "Regulatory Filings"), no
notices, reports or other filings are required to be made by the Company
with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by the Company from, any government
or governmental, regulatory or administrative authority or agency,
domestic, foreign or supranational (each, a "Governmental Entity"), in
connection with the execution and delivery of this Agreement by the Company
and
<PAGE>
the consummation by Purchaser of the Amended Offer and by the Company of
the Merger and the other transactions contemplated hereby, except those the
failure to make or obtain that are not, individually or in the aggregate,
reasonably likely to have a Company Material Adverse Effect or prevent,
materially delay or materially impair the ability of the Company or the
Purchaser to consummate any of the transactions contemplated by this
Agreement.
(ii) The execution, delivery and performance of this
Agreement by the Company do not, and the consummation by the Company of the
Merger pursuant to the terms of this Agreement and the other transactions
contemplated hereby will not, except as set forth in Section 6.1(d) of the
Company Disclosure Letter, constitute or result in (A) a breach or
violation of, or a default under, the Company Charter or the by-laws of the
Company or the comparable governing instruments of any of their
Subsidiaries, (B) a breach or violation of, or a default under, the
vesting, creation or acceleration of any rights or obligations or the
creation of a lien, pledge, security interest or other encumbrance on the
assets of the Company or any of its Subsidiaries (with or without notice,
lapse of time or both) pursuant to any provision of any agreement, lease,
contract, note, mortgage, indenture, arrangement or other domestic or
foreign obligation ("Contracts") of the Company or any of its Subsidiaries
or any Law (as defined in Section 6.1(i)) or governmental or non-
governmental permit or license to which the Company or any of its
Subsidiaries is subject or (C) any change in the rights or obligations of
any party under any of the Contracts, except, in the case of clause (B) or
(C) above, for any breach, violation, default, acceleration, creation or
change that, individually or in the aggregate, will not have a Company
Material Adverse Effect or prevent, delay or impair the ability of the
Company to consummate the transactions contemplated by this Agreement.
Section 6.1(d) of the Company Disclosure Letter sets forth a correct and
complete list of Contracts of the Company and its Subsidiaries pursuant to
which consents or waivers are or may be required prior to consummation of
the transactions contemplated by this Agreement (subject to the exception
set forth with respect to clauses (B) and (C) above). The Company will use
its reasonable best efforts to obtain the consents referred to in the
Disclosure Letter.
(e) Company Reports; Financial Statements. The Company
has filed with the Commission each registration statement, report, proxy
statement or information statement required to be filed by it since
December 31, 1994 (the "Audit Date"), including (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 and (ii) the
<PAGE>
Company's Quarterly Reports on Form 10-Q for the periods ended March 31,
1995, June 30, 1995, and September 30, 1995, (collectively, including any
such reports filed subsequent to the date hereof, the "Company Reports").
As of their respective dates, the Company Reports did not, and any Company
Reports filed with the Commission subsequent to the date hereof will not,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not mis-
leading. Except as disclosed in Section 6.1(e) of the Company Disclosure
Letter, neither the Company nor any of its Subsidiaries, nor any of their
respective assets, businesses, or operations, is as of the date of this
Agreement a party to, or is bound or affected by, or receives benefits
under any contract or agreement or amendment thereto, that in each case
would be required to be filed as an exhibit to a Form 10-K as of the date
of this Agreement that has not been filed as an exhibit to a Company Report
filed prior to the date of this Agreement. As of their respective dates,
the consolidated financial statements included in the Company Reports
complied as to form in all material respects with then applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto. Each of the consolidated balance sheets
included in or incorporated by reference into the Company Reports (includ-
ing the related notes and schedules) fairly presents the consolidated
financial position of the Company and its Subsidiaries as of its date and
each of the consolidated statements of income and of changes in cash flows
included in or incorporated by reference into the Company Reports
(including any related notes and schedules) fairly presents the results of
operations and changes in cash flows, as the case may be, of the Company
and its Subsidiaries for the periods set forth therein (subject, in the
case of unaudited statements, to the absence of notes and normal year-end
audit adjustments that will not be material in amount or effect), in each
case in accordance with U.S. generally accepted accounting principles
("GAAP") consistently applied during the periods involved, except as may be
noted therein.
(f) Absence of Certain Changes. Except as disclosed in
the Company Reports prior to the date hereof and except as disclosed in
Section 6.1(f) of the Company Disclosure Letter, since the Audit Date the
Company and its Subsidiaries have conducted their respective businesses
only in, and have not engaged in any material transaction other than
according to, the ordinary and usual course of such businesses and there
has not been (i) any change in the financial condition, business, prospects
or results of
<PAGE>
operations of the Company and its Subsidiaries, except those changes that
will not, individually or in the aggregate, have a Company Material Adverse
Effect; (ii) any material damage, destruction or other casualty loss with
respect to any material asset or property owned, leased or otherwise used
by the Company or any of its Subsidiaries, whether or not covered by
insurance; (iii) except for dividends that have already been declared and
publicly announced on Shares and payment of dividends on Preferred Shares
in accordance with its terms, any declaration, setting aside or payment of
any dividend or other distribution in respect of the capital stock of the
Company; (iv) any change by the Company in accounting principles, practices
or methods. Since the Audit Date, except as provided for herein or as
disclosed in the Company Reports prior to the date hereof, there has not
been any increase in the compensation payable or that could become payable
by the Company and its Subsidiaries to their officers or key employees or
any amendment of any of the Compensation and Benefit Plans (as defined in
Section 6.1(h) hereof) other than increases or amendments in the ordinary
course of business consistent with past practice.
(g) Litigation and Liabilities. Except as disclosed in
the Company Reports prior to the date hereof and except as disclosed in
Section 6.1(g) of the Company Disclosure Letter, there are no (i) civil,
criminal or administrative actions, suits, claims, hearings, investigations
or proceedings pending or threatened against the Company or any of its
Subsidiaries or Affiliates, in any foreign or domestic jurisdiction or
(ii) obligations or liabilities, whether or not accrued, contingent or
otherwise and whether or not required to be disclosed, including those
relating to matters involving any foreign or domestic Environmental Law (as
defined in Section 6.1(l)), or any other facts or circumstances that so far
as can reasonably be foreseen could result in any claims against or
obligations or liabilities of the Company or any of its Subsidiaries or
Affiliates, except for those that are not, individually or in the
aggregate, likely to have a Company Material Adverse Effect or prevent the
Company from consummating the transactions contemplated by this Agreement;
provided, however, that since December 31, 1994 and except as set forth in
Section 6.1(g) of the Company Disclosure Letter, the Company and its
Subsidiaries have not been subject to any civil judgment or arbitration
award in any jurisdiction, domestic or foreign, with a value in excess of
$500,000.
<PAGE>
(h) Employee Benefits.
(i) A copy (or, if unwritten, a summary thereof) of each
bonus, deferred compensation, pension, retirement, profit-sharing, thrift,
savings, employee stock ownership, stock bonus, stock purchase, restricted
stock, stock option, employment, termination, severance, compensation,
medical, health or other plan, agreement, policy or arrangement that covers
employees, directors, former employees or former directors of the Company
and its Subsidiaries and which are sponsored, maintained or contributed to
by the Company or its Subsidiaries (and excluding multiemployer plans as
defined under ERISA (as hereinafter defined) and excluding plans in foreign
jurisdictions as to which contributions are mandatory) (the "Compensation
and Benefit Plans") and any trust agreements or insurance contracts forming
a part of such Compensation and Benefit Plans has been made available to
Praxair prior to the date hereof. The Compensation and Benefit Plans are
listed in Section 6.1(h) of the Company Disclosure Letter.
(ii) All Compensation and Benefit Plans are in substantial
compliance with all applicable law, including the Code and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). Each
Compensation and Benefit Plan that is an "employee pension benefit plan"
within the meaning of Section 3(2) of ERISA (a "Pension Plan") and that is
intended to be qualified under Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service (the
"IRS"), and the Company is not aware of any circumstances likely to result
in revocation of any such favorable determination letter. There is no
pending or, to the knowledge of the officers of the Company, threatened
material litigation relating to the Compensation and Benefit Plans.
Neither the Company nor any Subsidiary has engaged in a transaction with
respect to any Compensation and Benefit Plan that, assuming the taxable
period of such transaction expired as of the date hereof, would subject the
Company or any of its Subsidiaries to a material tax or penalty imposed by
either Section 4975 of the Code or Section 502 of ERISA.
(iii) Except as disclosed in Section 6.1(h) of the Company
Disclosure Letter, as of the date hereof, no liability under Subtitle C
or D of Title IV of ERISA has been or is expected to be incurred by the
Company or any Subsidiary with respect to any ongoing, frozen or terminated
"single-employer plan", within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any of them, or the single-employer
plan of any entity which is considered one employer with the Company
<PAGE>
under Section 4001 of ERISA or Section 414 of the Code (an "ERISA
Affiliate"), except for such a liability that has as of the date hereof
been satisfied. Except as set forth in Section 6.1(h) of the Company
Disclosure Letter, the Company and its Subsidiaries have not incurred and
do not expect to incur any withdrawal liability with respect to a
multiemployer plan under Subtitle E to Title IV of ERISA, except for such a
liability that has as of the date hereof been satisfied. No notice of a
"reportable event", within the meaning of Section 4043 of ERISA for which
the 30-day reporting requirement has not been waived, has been required to
be filed for any Pension Plan or by any ERISA Affiliate within the 12-month
period ending on the date hereof or will be required to be filed in
connection with the transaction contemplated by this Agreement.
(iv) All contributions required to be made under the terms
of any Compensation and Benefit Plan have been timely made or have been
properly reflected on the most recent consolidated balance sheet filed or
incorporated by reference in the Company Reports prior to the date hereof.
Neither any Pension Plan nor any single-employer plan of an ERISA Affiliate
has an "accumulated funding deficiency" (whether or not waived) within the
meaning of Section 412 of the Code or Section 302 of ERISA. Neither the
Company nor its Subsidiaries has provided, or is required to provide,
security to any Pension Plan or to any single-employer plan of an ERISA
Affiliate pursuant to Section 401(a)(29) of the Code.
(v) Except as set forth in Section 6.1(h)(v) of the
Company Disclosure Letter, under each Pension Plan which is a single-
employer plan, as of the last day of the most recent plan year ended prior
to the date hereof, the actuarially determined present value of all
"benefit liabilities", within the meaning of Section 4001(a)(16) of ERISA
(as determined on the basis of the actuarial assumptions contained in the
Pension Plan's most recent actuarial valuation), did not exceed the then
current value of the assets of such Pension Plan, and there has been no
material adverse change in the financial condition of such Pension Plan
since the last day of the most recent plan year. Except as set forth in
Section 6.1(h)(v) of the Company Disclosure Letter, the withdrawal
liability under Subtitle E of Title I of ERISA of the Company and its
Subsidiaries under each multiemployer plan to which the Company, any of its
Subsidiaries or an ERISA Affiliate has contributed during the preceding
12 months, determined as if a "complete withdrawal", within the meaning of
Section 4203 of ERISA, had occurred as of the date hereof, does not exceed
$1,000,000.
<PAGE>
(vi) Neither the Company nor its domestic Subsidiaries have
any obligations for retiree health and life benefits under any Compensation
and Benefit Plan, except as set forth in the Company Disclosure Letter.
For a minimum of the past ten years any such plan has always provided that
the Company or its domestic Subsidiaries may amend or terminate any such
plan at any time without incurring any material liability thereunder.
(vii) Except as disclosed in the Company Reports prior to
the date hereof or as specifically contemplated by this Agreement or as set
forth in Section 6.1(h) of the Company Disclosure Letter, the consummation
of the Merger and the other transactions contemplated by this Agreement
will not (x) entitle any employees of the Company or its Subsidiaries to
severance pay, or (y) accelerate the time of payment or vesting or trigger
any payment of compensation or benefits under, increase the amount payable
or trigger any other material obligation pursuant to, any of the
Compensation or Benefit Plans.
(viii) All Compensation and Benefit Plans covering current or
former non-U.S. employees or former employees of the Company and its
Subsidiaries comply in all material respects with applicable local law.
The Company and its Subsidiaries have no material unfunded liabilities with
respect to any Pension Plan that covers such non-US employees.
(i) Compliance with Laws. Except as set forth in the
Company Reports prior to the date hereof and except as disclosed in
Section 6.1(i) of the Company Disclosure Letter, the businesses of each of
the Company and its Subsidiaries have not been, and are not being,
conducted in violation of any law, ordinance, regulation, judgment, order,
decree, arbitration award, license or permit of any Governmental Entity
(collectively, "Laws") with such exceptions as would not likely have a
Company Material Adverse Effect. Except as set forth in the Company
Reports prior to the date hereof and except as disclosed in Section 6.1(i)
of the Company Disclosure Letter, the Company is not aware of any material
investigation or review by any Governmental Entity with respect to the
Company or any of its Subsidiaries nor has any Governmental Entity
indicated to the Company an intention to conduct the same. No change is
required in the Company's or any of its Subsidiaries' processes, properties
or procedures in connection with any such Laws, and the Company has not
received any notice or communication of any noncompliance with any such
Laws that has not been cured as of the date hereof with such
<PAGE>
exceptions as would not likely have a Company Material Adverse Effect.
(j) Takeover Statutes. No supermajority vote is required
under any "fair price," "moratorium," "control share acquisition" or
similar antitakeover statute or regulation (each, a "Takeover Statute") in
connection with the Amended Offer, the Merger or the transactions
contemplated hereby. The Board has taken all appropriate and necessary
action such that the provisions of Section 203 of the DGCL will not apply
to any of the transactions contemplated by this Agreement.
(k) Voting Requirements; Company Articles. (i) The
affirmative vote of the holders of a majority of the outstanding stock
entitled to vote is the only vote of the holders of any class or series of
the Company's capital stock or of any Voting Debt of the Company necessary
to approve this Agreement and the transactions contemplated by this
Agreement (each outstanding Share being entitled to 1 vote and each
outstanding Convertible Preferred Share being entitled to 1.5 votes) (the
"Company Requisite Vote").
(ii) The Board of Directors of the Company has recommended
the Merger in accordance with Article Tenth of the Company Charter.
(iii) At least a majority of the Continuing Directors (as
defined in Article Fifteenth of the Company Charter) has approved the
Merger pursuant to the terms of this Agreement.
(l) Environmental Matters. Except as disclosed in the
Company Reports prior to the date hereof, except as disclosed in
Section 6.1(l) of the Company Disclosure Letter and except for such matters
that, alone or in the aggregate, will not have a Company Material Adverse
Effect, (i) the Company and its Subsidiaries have complied with all
applicable Environmental Laws; (ii) the properties presently or formerly
owned or operated by the Company or its Subsidiaries (including soil,
groundwater or surface features and buildings or structures thereon) (the
"Properties") do not contain any Hazardous Substances (as defined below)
other than as permitted under applicable Environmental Law, do not, and
have not, contained any underground storage tanks; (iii) neither the
Company nor any of its Subsidiaries has received any claims, notices,
demand letters or requests for information alleging that the Company may be
in violation of, or liable under, any Environmental Law and none of the
Company, its Subsidiaries or the Properties are subject to any agreement,
order or
<PAGE>
decree involving liability under any Environmental Law; (iv) no Hazardous
Substance has been disposed of or released on any of the Properties; (v)
the Company and Subsidiaries are not subject to liability for any off-site
disposal or contamination; and (vi) there are no other circumstances
involving the Company or its Subsidiaries that could be expected to result
in any claims, liability, costs or losses or any restrictions on the
ownership, use, or transfer of any Property pursuant to any Environmental
Law.
"Environmental Law" means any law, regulation, order, decree,
opinion or agency requirement relating to pollution, contamination, wastes,
hazardous materials or the protection of the environment, human health or
safety and "Hazardous Substance" means any waste, mixture or matter
containing any substance that is listed, classified under or regulated by
any government authority pursuant to any Environmental Law including any
petroleum compounds, asbestos, lead and polychlorinated biphenyls.
(m) Taxes. Except for such matters that would not be
reasonably likely to have, individually or in the aggregate, a Company
Material Adverse Effect, (a) the Company and its Subsidiaries have timely
filed all Tax Returns required to be filed by them with any taxing
authority with respect to Taxes for all periods heretofore ended, taking
into account any extension of time to file granted to or obtained on behalf
of the Company and its Subsidiaries, (b) all Taxes required to be paid with
respect to the periods covered by such Tax Returns or reports that are due
prior to the Effective Time have been paid or will be paid by the Effective
Time, (c) as of the date hereof, no deficiency for any amount of Tax has
been asserted or assessed by a taxing authority against the Company or any
of its Subsidiaries, except for amounts for which the Company has made an
adequate reserve as reflected in the Company Reports, (d) all liability for
Taxes of the Company or any of its Subsidiaries that are or will become due
or payable with respect to periods covered by the financial statements
referred to in Section 6.1(e) have been paid or adequately reserved for on
such financial statements to the extent required by GAAP, and (e) the
Company and its Subsidiaries are not liable for any Taxes arising out of
membership or participation in any consolidated, affiliated, combined or
unitary group in which it or any of its Subsidiaries was at any time a
member, other than such group the parent of which is the Company.
As used in this Agreement, (i) the term "Tax" (including, with
correlative meaning, the terms "Taxes", and "Taxable") includes all
federal, state, local and foreign
<PAGE>
income, profits, franchise, gross receipts, environmental, customs duty,
capital stock, severances, stamp, payroll, sales, employment, unemployment,
disability, use, property, withholding, excise, production, value added,
occupancy and other taxes, duties or assessments of any nature whatsoever,
together with all interest, penalties and additions imposed with respect to
such amounts and any interest in respect of such penalties and additions,
and (ii) the term "Tax Return" (including, with correlative meaning, the
term "Tax Returns") includes all returns and reports (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be supplied to a Tax authority relating to Taxes.
(n) Labor Matters. Except as set forth in Section 6.1(n)
of the Company Disclosure Letter and with such exceptions as would not have
a Material Adverse Effect, neither the Company nor any of its Subsidiaries
is a party to or otherwise bound by any collective bargaining agreement,
contract or other agreement or understanding with a labor union or labor
organization, nor is the Company or any of its Subsidiaries the subject of
any proceeding asserting that the Company or any of its Subsidiaries has
committed an unfair labor practice or is seeking to compel it to bargain
with any labor union or labor organization nor is there, nor has there been
for the past five years, any labor strike, dispute, walkout, work stoppage,
slow-down, lockout or other such controversy involving the Company or any
of its Subsidiaries pending or threatened.
(o) Information. None of the Amended Schedule 14D-9, the
Proxy Statement (as defined in Section 7.4 hereof) or any other document
filed or to be filed by or on behalf of the Company with the Commission or
any other governmental entity in connection with the transactions
contemplated by this Agreement contained when filed or will, at the
respective times filed with the Commission or other governmental entity
and, in addition, in the case of the Proxy Statement at the date it or any
amendment or supplement is mailed to stockholders of the Company and at the
time of any Special Meeting (as defined in Section 7.3), contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading; provided that the foregoing shall not apply to information
supplied by Praxair or the Purchaser specifically for inclusion or
incorporation by reference in any such document. The Amended Schedule 14D-
9 and the Proxy Statement will comply as to form in all material respects
with the provisions of the Exchange Act and the rules and
<PAGE>
regulations thereunder. None of the information supplied by the Company
specifically for inclusion or incorporation by reference in the Amended
Offer Documents or in any other document filed or to be filed by or on
behalf of Praxair or the Purchaser with the Commission or any other
Governmental Entity in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
(p) Brokers and Finders. Neither the Company nor any of
its officers, directors or employees has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders fees
in connection with the Merger or the other transactions contemplated in
this Agreement except that the Company has employed Merrill Lynch and
Lehman Bros. as its financial advisors, the arrangements with which have
been disclosed to Praxair prior to the date hereof.
6.2. Representations and Warranties of Praxair and
Purchaser. Praxair and Purchaser represent and warrant to the Company as
follows:
(a) Organization. Each of Praxair and Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware and each of Praxair and Purchaser has all requisite
corporate or similar power and authority to own, lease and operate its
properties and assets and to carry on its business as presently conducted.
(b) Authority. Each of Praxair and Purchaser has full
requisite corporate power and authority and has taken all corporate action
necessary to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by the Board of Directors of
each of Praxair and Purchaser and by Praxair as the sole stockholder of
Purchaser and no other corporate proceedings are necessary to authorize
this Agreement or the consummation of the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by each of
Praxair and Purchaser and, assuming this Agreement constitutes a legal,
valid and binding agreement of the Company, it constitutes a legal, valid
and binding agreement of each of
<PAGE>
Praxair and Purchaser, enforceable against them in accordance with its
terms.
(c) Governmental Filings; No Violations. (i) Other than
the Regulatory Filings no filing or registration with, notification to, or
authorization, consent or approval of, any Governmental Entity is required
by Praxair or Purchaser in connection with the execution and delivery of
this Agreement, or the consummation by Praxair or Purchaser of the
transactions contemplated hereby except such other consents, orders,
authorizations, registrations, declarations and filings not obtained prior
to the Effective Time the failure of which to be obtained or made would
not, individually or in the aggregate, have a Praxair Material Adverse
Effect (as defined below).
(ii) The execution, delivery and performance of this Agreement
by each of Praxair and the Purchaser do not, and the consummation by the
Purchaser of the Merger pursuant to the terms of this Agreement and the
other transactions contemplated hereby will not, constitute or result in
(A) a breach or violation of, or a default under, their respective
certificates of incorporation or by-laws or the comparable governing
instruments of any of their Subsidiaries, (B) a breach or violation of, or
a default under, the vesting, creation or acceleration of any rights or
obligations or the creation of a lien, pledge, security interest or other
encumbrance on the assets of Praxair, the Purchaser or any of their
Subsidiaries (with or without notice, lapse of time or both) pursuant to
any provision of any agreement, lease, contract, note, mortgage, indenture,
arrangement or other domestic or foreign obligation ("Praxair Contracts")
of Praxair, the Purchaser or any of their Subsidiaries or any Law (as
defined in Section 6.1(i)) or governmental or non-governmental permit or
license to which Praxair, the Purchaser or any of their Subsidiaries is
subject or (C) any change in the rights or obligations of any party under
any of the Praxair Contracts, except, in the case of clause (B) or (C)
above, for any breach, violation, default, acceleration, creation or change
that, individually or in the aggregate, will not have a material adverse
effect on Praxair's or Purchaser's ability to perform their respective
obligations pursuant to this Agreement or consummate the Amended Offer and
the Merger (a "Praxair Material Adverse Effect") or for which Praxair or
Purchaser has received appropriate consents or waivers.
(d) Information. Neither the Amended Offer Documents nor
any other document filed or to be filed by or on behalf of Praxair or
Purchaser with the Commission or any other Governmental Entity in
connection with the
<PAGE>
transactions contemplated by this Agreement contained when filed or will,
at the respective times filed with the Commission or other Governmental
Entity, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which
they were made, not misleading; provided, that, the foregoing shall not
apply to information supplied by the Company specifically for inclusion or
incorporation by reference in any such document. None of the information
supplied by Praxair or Purchaser specifically for inclusion or
incorporation by reference in the Amended Schedule 14D-9, the Proxy
Statement, or any other document filed or to be filed by or on behalf of
the Company with the Commission or any other governmental entity in
connection with the transactions contemplated by this Agreement contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading.
(e) Financing. Prior to the consummation of the Amended
Offer, Praxair will have caused Purchaser to have at the time of acceptance
for payment and purchase of Shares under the Amended Offer and at the
Effective Time, the funds necessary to consummate the Amended Offer and the
Merger and the transactions contemplated thereby and to pay related fees
and expenses.
ARTICLE VII
Covenants
7.1. Interim Operations. (a) The Company covenants and
agrees as to itself and its Subsidiaries that, after the date hereof and
prior to the date on which Purchaser's nominees comprise a majority of the
Board of Directors of the Company (unless Praxair shall otherwise approve
in writing and except as otherwise expressly contemplated by this
Agreement):
(i) the business of it and its Subsidiaries shall be
conducted in the ordinary and usual course and, to the extent consistent
therewith, it and its Subsidiaries shall use its reasonable best efforts to
preserve its business organization intact and maintain its existing rela-
tions and goodwill with customers, suppliers, distributors, creditors,
lessors, employees and business associates;
<PAGE>
(ii) it shall not (A) sell or pledge any capital stock
owned by it in any of its Subsidiaries; (B) amend the Company Charter or
its by-laws or amend, modify or terminate the Rights Agreement; (C) split,
combine or reclassify its outstanding shares of capital stock; (D) declare,
set aside or pay any dividend payable in cash, stock or property in respect
of any Shares or Preferred Shares other than regular quarterly or semi-
annual cash dividends not in excess of $0.12 per Share and regular
quarterly or semi-annual cash dividends on the Preferred Shares; or
(E) repurchase, redeem or otherwise acquire, or permit any of its
Subsidiaries to purchase or otherwise acquire, any shares of its capital
stock or any securities convertible into or exchangeable or exercisable for
any shares of its capital stock except in connection with the ordinary
course of operations of the CBI Salaried Employee Stock Ownership Plan
(1987);
(iii) neither it nor any of its Subsidiaries shall except as
disclosed in Section 7.1(a) of the Company Disclosure Letter (A) issue,
sell, pledge, dispose of or encumber, or authorize or propose the issuance,
sale, pledge, disposition or encumbrance of, any shares of, or securities
convertible into or exchangeable or exercisable for, or options, warrants,
calls, commitments or rights of any kind to acquire, any shares of its
capital stock of any class or any Voting Debt or any other property or
assets (other than Shares issuable pursuant to options outstanding on the
date hereof under the Stock Plan or upon conversion of Convertible
Preferred Shares; (B) other than in the ordinary and usual course of busi-
ness, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose
of any other property or assets or encumber any property or assets
(including capital stock of any of its Subsidiaries) or incur or modify any
material indebtedness or other liability; or (C) make any commitments for,
make or authorize any capital expenditures other than existing capital
expenditures required to be made pursuant to existing capital projects, as
set forth in Section 7.1(a)(iii) of the Company Disclosure Letter, which
have been previously authorized or, by any means, make any acquisition of,
or investment in, assets or stock of any other Person or entity;
(iv) except as disclosed in Section 7.1(a) of the Company
Disclosure Letter, neither it nor any of its Subsidiaries shall terminate,
establish, adopt, enter into, make any new grants or awards under, amend or
otherwise modify, any Compensation and Benefit Plans or increase the
salary, wage, bonus or other compensation of any employees other than
increases in compensation in the ordinary course
<PAGE>
of business, in each case, consistent with past practices with regard to
frequency and amount;
(v) neither it nor any of its Subsidiaries shall settle or
compromise any material claims or litigation or, except in the ordinary and
usual course of business modify, amend or terminate any of its material
Contracts or waive, release or assign any material rights or claims;
(vi) neither it nor any of its Subsidiaries shall make any
Tax election or permit any insurance policy naming it as a beneficiary or
loss-payable payee to be cancelled or terminated except in the ordinary and
usual course of business; and
(vii) neither it nor any of its Subsidiaries will authorize
or enter into an agreement to do any of the foregoing.
(b) Other Actions. The Company shall not, and shall not
permit any of its Subsidiaries to, take any action that would, or that
could reasonably be expected to, result in (i) any of the representations
and warranties of the Company set forth in this Agreement that are
qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in
any material respect or (iii) any of the conditions to the Merger set forth
in Article VIII not being satisfied.
7.2. Acquisition Proposals. The Company agrees that
neither it nor any of its Subsidiaries nor any of the officers and
directors of it or its Subsidiaries shall, and that it shall direct and use
its best efforts to cause its and its Subsidiaries' employees, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) not to, directly or indirectly,
initiate, solicit, encourage or otherwise facilitate any inquiries or the
making of any proposal or offer with respect to a merger, reorganization,
consolidation or similar transaction involving, or any purchase of all or
any significant portion of the assets or any equity securities of (any such
proposal or offer being hereinafter referred to as an "Acquisition
Proposal"), it or any of its Subsidiaries (it being understood and agreed
that any action permitted under the exception in the next sentence shall
not be deemed a prohibited initiation, solicitation, encouragement or
facilitation hereunder). The Company further agrees that neither it nor
any of its Subsidiaries nor any of the officers and directors of it or its
Subsidiaries shall, and that it shall direct and use its
<PAGE>
best efforts to cause its and its Subsidiaries' employees, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) not to, directly or indirectly,
except to the extent legally required for the discharge by the Board of its
fiduciary duties as advised by outside counsel, engage in any negotiations
concerning, or provide any confidential information or data to, or have any
discussions with, any Person relating to an Acquisition Proposal with
respect to it or any of its Subsidiaries, or otherwise facilitate any
effort or attempt to make or implement an Acquisition Proposal with respect
to it or any of its Subsidiaries or any of their businesses. The Company
agrees that it will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing it being understood however
that resumption of any such activities, discussions or negotiations shall
not violate this provision to the extent legally required for the discharge
by the Board of its fiduciary duties, as advised by outside counsel. The
Company agrees that it will use its reasonable best efforts to promptly
inform the individuals or entities referred to in the first sentence of
this Section 7.2 of the obligations undertaken in this Section 7.2. The
Company agrees that it will notify Praxair immediately if (i) any such
inquiries, proposals or offers are received by, any such information is
requested from, or any such negotiations or discussions are sought to be
initiated or continued with it or its Subsidiaries or (ii) the Company
determines that it is legally required for the discharge by the Board of
its fiduciary duties as advised by outside counsel to deliver such
information or to enter into such negotiations or discussions. The Company
also agrees that it will promptly request each Person that has heretofore
executed any confidentiality agreement in connection with the consideration
of an Acquisition Proposal with respect to the Company or any of its
Subsidiaries or any of their businesses to return all confidential
information heretofore furnished to such Person by or on behalf of it or
any of its Subsidiaries.
7.3. Stockholders Meeting. The Company, acting through the
Board, will take, in accordance with applicable law, the Company Charter
and the Company's by-laws, all action necessary to duly call, give notice
of, convene and hold a special meeting of stockholders (the "Special
Meeting") as soon as practicable after the purchase of Shares by Purchaser
pursuant to the Amended Offer for the purpose of considering and taking
action upon the Merger and this Agreement and such other matters as may be
necessary to consummate the transactions contemplated by this Agreement.
<PAGE>
Subject to the fiduciary obligations of the Board under applicable law as
advised by outside counsel, the Board shall recommend approval of the
Merger and the adoption of this Agreement. At any meeting of the Company's
stockholders, Praxair will cause the Shares acquired in the Amended Offer,
and any additional Shares owned by it or its affiliates, to be voted in
favor of this Agreement and the Merger.
7.4. Filings; Other Actions; Notification. (a) The
Company, acting through its Board, in consultation with Praxair, shall (i)
prepare and, following consummation of the Amended Offer, file with the
Commission a preliminary proxy statement (or, if applicable, a preliminary
information statement) relating to the matters to be considered at the
Special Meeting pursuant to this Agreement and use its reasonable best
efforts (x) to obtain and furnish the information required to be included
in the Proxy Statement (as hereinafter defined) and, after consultation
with Praxair, to respond promptly to any comments made by the Commission
with respect to the preliminary proxy statement (or, if applicable, a
preliminary information statement) and to cause a definitive proxy
statement (or, if applicable, a definitive information statement) (the
"Proxy Statement") to be mailed to its stockholders and (y) subject to the
fiduciary obligations of the Board of Directors of the Company under
applicable law as advised by outside counsel, to obtain the necessary
approvals of the Merger, this Agreement and such other matters as may be
necessary to consummate the transactions contemplated hereby by its
stockholders; and
(ii) subject to the fiduciary obligations of the Board
under applicable law as advised by outside counsel, include in the Proxy
Statement the recommendation of the Board that stockholders of the Company
vote in favor of the approval of the Merger and the adoption of this
Agreement.
(b) The Company and Praxair each shall cooperate with each
other and use (and cause their respective Subsidiaries to use) their
respective best efforts to prepare and file as promptly as practicable all
documentation to effect all necessary applications, notices, petitions,
filings and other documents and to obtain as promptly as practicable all
permits, consents, approvals and authorizations necessary or advisable to
be obtained from any third party and/or any Governmental Entity in
connection with the Merger and to consummate the other transactions
contemplated by this Agreement. Subject to applicable laws relating to the
exchange of information, Praxair and the Company shall have the right to
review in advance, and to
<PAGE>
the extent practicable each will consult the other on, all the information
relating to Praxair or the Company, as the case may be, and any of their
respective Subsidiaries, that appear in any filing made with, or written
materials submitted to, any third party and/or any Governmental Entity in
connection with the Merger and the other transactions contemplated by this
Agreement. In exercising the foregoing right, each of the Company and
Praxair shall act reasonably and as promptly as practicable.
(c) The Company and Praxair each shall, upon request by
the other and subject to applicable laws relating to the exchange of
information, furnish the other with all information concerning itself, its
Subsidiaries, directors, officers and stockholders and such other matters
as may be reasonably necessary or advisable in connection with the Proxy
Statement or any other statement, filing, notice or application made by or
on behalf of Praxair, the Company or any of their respective Subsidiaries
to any third party and/or any Governmental Entity in connection with the
Merger and the transactions contemplated by this Agreement. Praxair agrees
that confidential information obtained by it pursuant hereto or pursuant to
the Confidentiality Agreement dated December 5, 1995 has been and shall be
treated in accordance with the provisions of such Confidentiality
Agreement.
(d) The Company and Praxair each shall keep the other
apprised of the status of matters relating to completion of the
transactions contemplated hereby, including promptly furnishing the other
with copies of notice or other communications received by Praxair or the
Company, as the case may be, or any of its Subsidiaries, from any third
party and/or any Governmental Entity with respect to the Merger and the
other transactions contemplated by this Agreement. The Company and Praxair
each shall give prompt notice to the other of any change that is reasonably
likely to result in a Company Material Adverse Effect or Praxair Material
Adverse Effect, respectively.
(e) Without limiting the generality of the undertakings
pursuant to this Section 7.4, the Company and Praxair each agree to take or
cause to be taken the following actions: (i) provide promptly to any and
all federal, state, local or foreign court or Government Entity with
jurisdiction over enforcement of any applicable antitrust laws ("Government
Antitrust Entity") information and documents requested by such Government
Antitrust Entity or necessary, proper or advisable to permit consummation
of the Merger and the transactions contemplated by this Agreement and (ii)
take promptly, in the event that any
<PAGE>
permanent or preliminary injunction or temporary restraining order, hold
separate order or other order is entered or sought in any proceeding that
would make consummation of the Merger or the Amended Offer in accordance
with the terms of this Agreement unlawful or that would prevent or delay
consummation of the Merger or the other transactions contemplated by this
Agreement, any and all steps (including the appeal thereof or the posting
of a bond and including the making of any divestiture; provided, that, the
making of any such divestitures with respect to assets in the United States
does not relate to assets generating more than $200,000,000 in revenues per
annum in the aggregate) necessary to vacate, modify or suspend or avoid
such injunction or order so as to permit such consummation of the Amended
Offer no later than the 60th business day after the date of the Amended
Offer.
7.5. Access. Upon reasonable notice, and except as may
otherwise be required by applicable law, the Company shall (and shall cause
its Subsidiaries to) afford Praxair's officers, employees, counsel,
accountants and other authorized representatives ("Representatives")
access, during normal business hours throughout the period prior to the
Effective Time, to its properties, books, contracts and records and, during
such period, shall (and shall cause its Subsidiaries to) furnish promptly
to the other all information concerning its business, properties and
personnel as may reasonably be requested; provided that, no investigation
pursuant to this Section 7.5 shall affect or be deemed to modify any repre-
sentation or warranty made by the Company, Praxair or Purchaser; and
provided, further, that, the foregoing shall not require the Company to
permit any inspection, or to disclose any information, that in the
reasonable judgment of the Company would result in the disclosure of any
trade secrets of third parties or violate any of its obligations with
respect to confidentiality if the Company shall have used reasonable best
efforts to obtain the consent of such third party to such inspection or
disclosure and provided, further, that Praxair shall use its reasonable
best efforts to promptly notify the Company if it discovers any information
that might indicate that any representation or warranty by the Company is
incorrect, incomplete or otherwise deficient. All requests for information
made pursuant to this Section 7.5 shall be directed to an executive officer
of the Company or such Person as may be designated by its officers.
7.6. Publicity. The initial press release shall be a joint
press release and thereafter the Company and Praxair each shall use
reasonable best efforts to consult with each other prior to issuing any
press releases or
<PAGE>
otherwise making public announcements with respect to the Merger and the
other transactions contemplated by this Agreement and prior to making any
filings with any third party and/or any Governmental Entity (including any
national securities exchange) with respect thereto.
7.7. Benefits.
(a) Stock Options. The Company shall take all actions
necessary to provide that, immediately prior to the consummation of the
Amended Offer, each Company Option which is not then exercisable will be
exercisable in full and each Company Option (and each related stock
appreciation right) outstanding prior to the Effective Time pursuant to any
of the Stock Plans, whether or not then exercisable, shall be canceled and
only entitle the holder thereof, upon surrender thereof, to receive an
amount in cash equal to the difference between the Merger Consideration and
the exercise price per Share of such Company Option multiplied by the
number of Shares previously subject to such Company Option (such payment to
be net of applicable withholding taxes).
(b) Except as set forth in Section 7.7(b) of the Company
Disclosure Letter and except as provided herein or as otherwise agreed to
by the parties and to the extent permitted by the Stock Plans, (i) the
Stock Plans shall terminate immediately following the purchase of Shares
pursuant to the Amended Offer and the provisions in any other plan, program
or arrangement, providing for the issuance or grant of any other interest
in respect of the capital stock of the Company or any of its Subsidiaries
shall be deleted as of the Effective Time and (ii) the Company shall use
all reasonable efforts to ensure that following the Effective Time no
holder of Company Options or any participant in the Stock Plans or any
other plans, programs or arrangements shall have any right thereunder to
acquire any equity securities of the Company, the Surviving Corporation or
any subsidiary thereof.
(c) Employee Benefits. Praxair agrees that, during the
period commencing on consummation of the Amended Offer and ending on the
first anniversary thereof, the employees of the Company and its
Subsidiaries and former employees of the Company and its Subsidiaries,
other than employees covered by collective bargaining agreements, will
continue to be provided with benefits under employee benefit plans with a
value which is not less in the aggregate than that currently provided by
the Company and its Subsidiaries to such employees. In so providing any
such benefits or plans, for purposes of participation and vesting Purchaser
and Praxair agree to give employees of the Company and its
<PAGE>
Subsidiaries service credit for all periods of employment with any such
entity prior to the Effective Time for purposes of any such plans or
benefits so provided. Praxair will, and will cause the Surviving
Corporation to, honor all employee (or former employee) benefit obligations
and contractual rights existing as of the Effective Time and, to the extent
set forth in the Company Reports or otherwise specifically disclosed in the
Company Disclosure Letter, all employment or severance agreements, plans or
policies of the Company and its Subsidiaries in accordance with their
terms. Purchaser acknowledge and agree that consummation of the Amended
Offer constitutes a "Change in Control" with respect to those persons
listed, and pursuant to the agreements and plans set forth in,
Section 7.7(c) of the Company Disclosure Letter.
7.8. Expenses. The Surviving Corporation shall pay all
charges and expenses, including those of the Paying Agent, in connection
with the transactions contemplated in Article V, and Praxair shall
reimburse the Surviving Corporation for such charges and expenses. Whether
or not the Merger is consummated, all costs and expenses incurred in con-
nection with this Agreement and the Merger and the other transactions
contemplated by this Agreement shall be paid by the party incurring such
expense, except as may be permitted by Section 9.5 hereof and except that
expenses incurred in connection with printing and mailing the Proxy
Statement shall be shared equally by Praxair and the Company.
7.9. Indemnification; Directors' and Officers' Insurance.
(a) From and after the Effective Time, Praxair agrees that it will
indemnify and hold harmless each present and former director, officer and
employee of the Company, determined as of the Effective Time (the "Indemni-
fied Parties"), against any costs or expenses (including reasonable attor-
neys' fees), judgments, fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative
or investigative, arising out of matters existing or occurring at or prior
to the Effective Time, whether asserted or claimed prior to, at or after
the Effective Time, to the fullest extent that the Company would have been
permitted under Delaware law and the Company Charter or the Company's by-
laws in effect on the date hereof to indemnify such Person (and Praxair
shall also advance expenses as incurred to the fullest extent permitted
under applicable law; provided, that, the Person to whom expenses are
advanced provides an undertaking to repay such advances if it is ultimately
determined that such Person is not entitled to indemnification); and
provided, further, that, any
<PAGE>
determination required to be made with respect to whether an officer's or
director's conduct complies with the standards set forth under Delaware law
and the Company Charter and the Company's by-laws shall be made by counsel
selected by the Surviving Corporation. Purchaser agrees that all rights to
indemnification in favor of any present or former employee, agent, director
or officer of the Company and its subsidiaries (the "Indemnified Parties")
as provided in their respective charters or by-laws, in an agreement
between an Indemnified Party and the Company or any of its subsidiaries, or
otherwise in effect on the date hereof shall survive the Merger and shall
continue in full force and effect for a period of not less than five years
from the Effective Time; provided that in the event any claim or claims are
asserted or made within such five-year period, all rights to
indemnification in respect of any such claim or claims shall continue until
final disposition of any and all such claims.
(b) Any Indemnified Party wishing to claim indemnification
under paragraph (a) of this Section 7.9, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Praxair
thereof. An Indemnified Party may select counsel to represent him or her
in connection with any of the foregoing, which counsel shall be reasonably
acceptable to Purchaser, and Purchaser and the Company will cooperate in
the defense of any such matter; provided, however, that neither Purchaser
nor the Company shall be liable for any settlement effected without its
written consent and provided, further, that neither Purchaser nor the
Company shall be obligated to pay the fees and disbursements of more than
one counsel for all Indemnified Parties in any single matter except to the
extent that, in the opinion of counsel for the Indemnified Parties, two or
more of such Indemnified Parties have conflicting interests in the outcome
of such matter. Praxair shall not have any obligation hereunder to any
Indemnified Party if and when a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final, that
the indemnification of such Indemnified Party in the manner contemplated
hereby is prohibited by applicable law.
(c) Praxair agrees that it shall use all reasonable
efforts to maintain the Company's existing officers, and directors,
liability insurance policy and employee benefit plan fiduciary liability
insurance ("D&0 Insurance") for a period of not less than five years from
and after the Effective Time; provided, (i) that Praxair may substitute
therefor policies of substantially similar coverage and amounts containing
terms no less advantageous
<PAGE>
to the Indemnified Parties and (ii) if the existing D&O Insurance expires
or is canceled during such period, Praxair will use reasonable efforts to
obtain substantially similar D&O Insurance to the extent available;
provided, further, that, notwithstanding clauses (i) and (ii) of this
subsection 7.9(c), in the event that the aggregate annual premiums for D&O
Insurance at any time during such five year period shall exceed 175% of the
per annum rate of premium currently paid (the "Base Rate") by Company and
its Subsidiaries for such D&O Insurance on the date of this Agreement, then
Praxair shall only be obligated to provide the maximum coverage that shall
then be available at an annual premium equal to 175% of the Base Rate.
(d) If the Surviving Corporation or any of its successors
or assigns (i) shall consolidate with or merge into any other corporation
or entity and shall not be the continuing or surviving corporation or
entity of such consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any individual,
corporation or other entity, then and in each such case, proper provisions
shall be made so that the successors and assigns of the Surviving
Corporation shall assume all of the obligations set forth in the last two
sentences of Section 7.7(c) and this Section 7.9.
(e) The provisions of this Section 7.9 are intended to be
for the benefit of, and shall be enforceable by, each of the Indemnified
Parties, their heirs and their representatives.
7.10. Other Actions by the Company and Praxair.
(a) Rights. The Company, acting through its Board, shall
take all necessary action (and shall notify Praxair of any such actions
taken) prior to the Expiration Date including, without limitation,
supplementing or amending the Rights Agreement to ensure that, so long as
this Agreement has not been terminated, the Amended Offer is a "Permitted
Tender Offer" (as defined in the Rights Agreement), (it being understood
that the Company shall amend the definition of "Permitted Tender Offer" in
the Rights Agreement), no "Distribution Date" (as defined in the Rights
Agreement) will occur and Section 11.1(b) of the Rights Agreement will not
be triggered, in each case as a result of the announcement, commencement or
consummation of the Amended Offer or the execution or delivery of this
Agreement with the effect that none of such events will trigger the
exercisability of the Rights or the separation of the Rights from the
certificates to which they are attached. So long as this Agreement has not
been
<PAGE>
terminated, the Board shall also take all further action (in addition to
that referred to above) requested in writing by Praxair or Purchaser
(including redeeming the Rights immediately prior to the Effective Time or
amending the Rights Agreement) in order to render the Rights inapplicable
to the Merger and the other transactions contemplated by this Agreement.
Except as provided above with respect to the Merger and the other
transactions by Praxair or Purchaser, the Board shall not (i) amend the
Rights Agreement or (ii) take any action with respect to, or make any
determination under, the Rights Agreement, including a redemption of the
Rights or any action to facilitate an Acquisition Proposal, provided,
however, that nothing herein shall be deemed to preclude the Company from
taking any action with respect to the Rights Agreement (including any
modification or amendment thereto or waiver thereof) as it applies to any
third party other than Praxair and the Purchaser to the extent required for
the Board of Directors of the Company to comply with its fiduciary
obligations under applicable law, as advised in writing by outside counsel
to the Company. The Company will promptly furnish to Praxair and Purchaser
a complete and correct copy of the Rights Agreement, as so amended.
(b) Takeover Statute. If any Takeover Statute is or may
become applicable to the Initial Offer, the Amended Offer, the Merger or
any other transaction contemplated by this Agreement, the Company and the
Board shall grant such approvals and take such actions as are necessary so
that such transactions may be consummated as promptly as practicable on the
terms contemplated by this Agreement or by the Merger and otherwise act to
eliminate or minimize the effects of such statute or regulation on such
transactions.
(c) Termination of Litigation. The parties hereto shall
immediately dismiss, with each party bearing its own costs and litigation
expenses, all proceedings pending between themselves and their affiliates
and each shall thereafter sign and deliver such further papers as may be
necessary in connection with such dismissals.
7.11. Notification of Certain Matters. Each of Praxair and
the Company shall give prompt notice to the other party of (i) the
occurrence, or non-occurrence, of any event the occurrence, or non-
occurrence, of which would be likely to cause either (A) any representation
or warranty contained in this Agreement to be untrue or inaccurate in any
material respect at any time from the date hereof to the acceptance for
payment of Shares pursuant to the Amended Offer, (B) any condition set
forth in Annex A to be
<PAGE>
unsatisfied in any material respect at any time from the date hereof to the
date the Purchaser purchases Shares pursuant to the Amended Offer or (C)
any condition set forth in Article VIII hereof to be unsatisfied in any
material respect at any time from the date hereof to the Effective Time,
and (ii) any material failure of Praxair or the Company, as the case may
be, or any officer, director, employee or agent thereof, to comply with or
satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided, however, that the delivery of any
notice pursuant to this Section 7.11 shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
ARTICLE VIII
Conditions
8.1. Conditions to Obligations of Praxair and Purchaser.
The respective obligations of Praxair and Purchaser to consummate the
Merger are subject to the fulfillment of each of the following conditions,
any or all of which may be waived in whole or in part by Praxair or
Purchaser, as the case may be, to the extent permitted by applicable law:
(a) Stockholder Approval. This Agreement shall have been
duly approved by Company Requisite Vote, in accordance with applicable law,
the Company Charter and the by-laws of the Company;
(b) Purchase of Shares. Purchaser (or one of the Praxair
Companies) shall have purchased Shares pursuant to the Amended Offer;
(c) Governmental Consents. The waiting period applicable
to the consummation of the Merger under the HSR Act shall have expired or
been terminated;
(d) Litigation. No United States or state court or other
Governmental Entity of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, judgment,
decree, injunction or other order (whether temporary, preliminary or
permanent) which is in effect and prohibits consummation of the trans-
actions contemplated by this Agreement (collectively, an "Order");
<PAGE>
(e) Other Obligations. The Company shall have fulfilled
its obligations under Sections 7.7(a) and (b) and Section 7.10 hereof.
8.2. Conditions to Obligations of the Company. The
obligations of the Company to consummate the Merger are subject to the
fulfillment of each of the following conditions, any or all of which may be
waived in whole or in part by the Company to the extent permitted by
applicable law:
(a) Stockholder Approval. This Agreement shall have been
duly approved by the Company Requisite Vote, in accordance with applicable
law, the Company Charter and the by-laws of the Company;
(b) Purchase of Shares. Purchaser (or one of the Praxair
Companies) shall have purchased Shares pursuant to the Amended Offer;
(c) Governmental Consents. The waiting period applicable
to the consummation of the Merger under the HSR Act shall have expired or
been terminated; and
(d) Order. There shall be in effect no Order.
ARTICLE IX
Termination
9.1. Termination by Mutual Consent. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the
Effective Time, before or after the approval by stockholders of the Company
referred to in Sections 8.1(a) and 8.2(a) hereof, by the mutual consent of
Praxair and the Company, by action of their respective Boards of Directors.
9.2. Termination by Either Praxair or the Company. This
Agreement may be terminated and the Merger may be abandoned by action of
the Board of Directors of either Praxair or the Company if (i) Purchaser
shall have terminated the Amended Offer without purchasing any Shares
pursuant thereto; provided, that, in the case of termination of this
Agreement by Praxair, such termination of the Amended Offer is not in
violation of the terms of the Amended Offer or this Agreement or (ii) a
majority of the outstanding Shares shall not have been purchased pursuant
to the Amended Offer within 60 business days of the date thereof; provided,
further, that the right to terminate this Agreement pursuant to this
Section 9.2 will not be available
<PAGE>
to any party who at such time is in material breach of its obligations
under this Agreement.
9.3. Termination by Praxair. So long as Praxair is not in
material breach of any of its obligation hereunder, this Agreement may be
terminated and the Merger may be abandoned at any time prior to the
purchase of a majority of the outstanding Shares pursuant to the Amended
Offer, before or after the approval by stockholders of the Company referred
to in Sections 8.1(a) and 8.2(a) hereof, by action of the Board of Di-
rectors of Praxair, if (x) the representations and warranties of the
Company set forth in the Agreement shall not be true and correct in any
respect as of the Expiration Date as though made on or as of such date or
the Company shall have breached or failed in any material respect to
perform or comply with any material obligation, agreement or covenant
required by this Agreement to be performed or complied with by it except,
in each case, (i) for changes specifically permitted by this Agreement and
(ii) (A) those representations and warranties that address matters only as
of a particular date which are true and correct as of such date or (B)
where the failure of representations and warranties (without regard to
materiality qualifications therein contained) to be true and correct, or
the performance or compliance with such obligations, agreements or
covenants, do not, individually or in the aggregate, have a Company
Material Adverse Effect; or (y) the Board shall have withdrawn or modified
in a manner adverse to Praxair or Purchaser its approval or recommendation
of the Amended Offer, this Agreement or the Merger or the Board, upon
request by Praxair, shall fail to reaffirm such approval or recommendation
within 2 business days of such request, or shall have resolved to do any of
the foregoing.
9.4. Termination by the Company. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the
Effective Time, before or after the approval by stockholders of the Company
referred to in Sections 8.1(a) and 8.2(a) hereof by action of the Board if
(i) Praxair or Purchaser shall have failed to comply in any material
respect with any of the covenants or agreements contained in this Agreement
to be complied with or performed by Praxair or Purchaser at or prior to
such date of termination, or any representation or warranty made by Praxair
in this Agreement shall be untrue or incorrect in any material respect,
(ii) Praxair or Purchaser shall have failed to amend the Initial Offer
within the time required in Section 1.1 or (iii) the Company receives an
Acquisition Proposal on terms the Board (after consultation with its
financial advisors) determines to be more favorable to the
<PAGE>
Company's stockholders than the terms of the Amended Offer and the Merger,
and the Board determines, as advised by outside counsel, that it is legally
required for the discharge of its fiduciary duties, (A) not to continue to
recommend that holders of Shares accept the Amended Offer and tender their
Shares pursuant to the Amended Offer, and (B) to accept such Acquisition
Proposal; provided, however, that the Company shall not be permitted to
terminate this Agreement pursuant to this Section 9.4(iii) unless it has
provided Praxair and Purchaser with two business days prior written notice
of this intent to so terminate this Agreement together with a detailed
summary of the terms and conditions (including proposed financing, if any)
of such Acquisition Proposal; provided, further, that Purchaser shall
receive the fee set forth in Section 9.5(b) immediately prior to any
termination pursuant to this Section 9.4(iii) by wire transfer in same day
funds.
9.5. Effect of Termination and Abandonment. (a) In the
event of termination of this Agreement and abandonment of the Merger
pursuant to this Article IX, no party hereto (or any of its directors or
officers) shall have any liability or further obligation to any other party
to this Agreement, except as provided in Section 9.5(b) below and Section
10.2 and except that nothing herein will relieve any party from liability
for any breach of this Agreement. Nothing herein shall limit the ability
of the Company upon termination of this Agreement in accordance with its
terms to make the Rights (or any similar rights issued under any new rights
agreement entered into by the Company) applicable to any proposal or offer
made by Praxair or any affiliate thereof.
(b) If (x) (i) the Amended Offer shall have remained open for a
minimum of at least 10 business days, (ii) after the date hereof any
corporation, partnership, person, other entity or group (as defined in
Section 13(d)(3) of the Exchange Act) other than Praxair or Purchaser or
any of their respective subsidiaries or affiliates (collectively, an
"Acquiring Person") shall have become the beneficial owner of 10% or more
of the outstanding Shares, and (iii) the Minimum Tender Condition (as
defined in Annex A) shall not have been satisfied and the Amended Offer is
terminated in accordance with this Agreement without the purchase of any
Shares thereunder, (y) Praxair shall have terminated this Agreement
pursuant to Section 9.3(y) hereof or (z) the Company shall have terminated
this Agreement pursuant to Section 9.4(iii) hereof, then the Company, if
requested by Praxair, shall promptly, but in no event later than two days
after the date of such request, pay Praxair a fee of $43,500,000 which
<PAGE>
amount shall be payable in same day funds. The Company acknowledges that
the agreements contained in this Section 9.5(b) are an integral part of the
transactions contemplated in this Agreement, and that, without these
agreements, Praxair and Purchaser would not enter into this Agreement;
accordingly, if the Company fails to promptly pay the amount due pursuant
to this Section 9.5(b), and, in order to obtain such payment, Praxair or
Purchaser commences a suit which results in a judgment against the Company
for the fee set forth in this paragraph (b), the Company shall pay to
Praxair or Purchaser its costs and expenses (including attorneys' fees) in
connection with such suit, together with interest on the amount of the fee
at the prime rate of Morgan Guaranty Trust Company of New York on the date
such payment was required to be made.
ARTICLE X
Miscellaneous and General
10.1. Survival. This Article X and the agreements of the
Company, Praxair and Purchaser contained in Sections 5.2 (but only to the
extent that such Section relates to actions to be taken after the Effective
Time), 5.3, 5.4, 7.7 and 7.9 shall survive the consummation of the Merger.
This Article X and the agreements of the Company, Praxair and Purchaser
contained in the last two sentences of Section 7.7(c), Section 7.8 and
Section 9.5 shall survive the termination of this Agreement. All other
representations, warranties, agreements and covenants in this Agreement
shall not survive the consummation of the Merger or the termination of this
Agreement.
10.2. Modification or Amendment. Subject to the provisions
of applicable law and Section 1.3 hereof, at any time prior to the
Effective Time, the parties hereto may modify or amend this Agreement, by
written agreement executed and delivered by duly authorized officers of the
respective parties.
10.3. Waiver of Conditions. The conditions to each of the
parties' obligations to consummate the Merger are for the sole benefit of
such party and may be waived by such party in whole or in part to the
extent permitted by applicable law.
10.4. Counterparts. This Agreement may be executed in any
number of counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts shall together constitute
the same agreement.
<PAGE>
10.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL
BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF
THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the jurisdiction of the
courts of the State of Delaware and the Federal courts of the United States
of America located in the State of Delaware solely in respect of the
interpretation and enforcement of the provisions of this Agreement and of
the documents referred to in this Agreement, and in respect of the
transactions contemplated hereby, and hereby waive, and agree not to
assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be
brought or is not maintainable in said courts or that the venue thereof may
not be appropriate or that this Agreement or any such document may not be
enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard
and determined in such a Delaware State or Federal court. The parties
hereby consent to and grant any such court jurisdiction over the Person of
such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 10.6 or in such other manner
as may be permitted by law, shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.5.
<PAGE>
10.6. Notices. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in
writing and delivered personally or sent by registered or certified mail,
postage prepaid:
if to Praxair or Purchaser
Praxair, Inc.
39 Old Ridgebury Road
Danbury, CT 06810-5113
Attention: David H. Chaifetz, Esq.
with a copy to:
Neil T. Anderson, Esq.
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
if to the Company
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, IL 60521-7001
Attention: Charles O. Ziemer, Esq.
with a copy to:
Richard D. Katcher, Esq.
Seth A. Kaplan, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
or to such other persons or addresses as may be designated in writing by
the party to receive such notice.
10.7. Entire Agreement. This Agreement (including any
exhibits hereto), the Company Disclosure Letter and the Praxair Disclosure
Letter constitute the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties both written and
oral, among the parties, with respect to the subject matter hereof.
10.8. No Third Party Beneficiaries. Except as provided in
the last two sentences of Section 7.7(c) and in Section 7.9 hereof, this
Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
10.9. Obligations of Praxair and of the Company. Whenever
this Agreement requires a Subsidiary of Praxair to
<PAGE>
take any action, such requirement shall be deemed to include an undertaking
on the part of Praxair to cause such Subsidiary to take such action.
Whenever this Agreement requires a Subsidiary of the Company to take any
action, such requirement shall be deemed to include an undertaking on the
part of the Company to cause such Subsidiary to take such action and, after
the Effective Time, on the part of the Surviving Corporation to cause such
Subsidiary to take such action.
10.10. Severability. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability or the other provisions
hereof. If any provision of this Agreement, or the application thereof to
any Person or any circumstance, is invalid or unenforceable, (a) a suitable
and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement
and the application of such provision to other Persons or circumstances
shall not be affected by such invalidity or unenforceability, nor shall
such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction.
10.11. Interpretation. The table of contents and headings
herein are for convenience of reference only, do not constitute part of
this Agreement and shall not be deemed to limit or otherwise affect any of
the provisions hereof. Where a reference in this Agreement is made to a
Section or Exhibit, such reference shall be to a Section of or Exhibit to
this Agreement unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation."
10.12. Assignment. This Agreement shall not be assignable by
operation of law or otherwise and is not intended to create any obligations
to, or rights in respect of, any persons other than the parties hereto;
provided, however, that Praxair may designate, by written notice to the
Company, another wholly-owned direct or indirect subsidiary to be a
Constituent Corporation in lieu of Purchaser, in the event of which, all
references herein to Purchaser shall be deemed references to such other
subsidiary except that all representations and warranties made herein with
respect to Purchaser as of the date of this Agreement shall be deemed
representations and warranties made with respect to such other subsidiary
as of the date of such designation.
<PAGE>
10.13. Enforcement of the Agreement. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
10.14. Disclosure. The inclusion of any matter on the
Company Disclosure Letter does not constitute an admission by the Company
that any such matter is material. A disclosure of any item by the Company
in any section of the Company Disclosure Letter shall be deemed disclosure
of such item for all purposes of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first written above.
CBI Industries, Inc.
By: /s/ John E. Jones
Name: John E. Jones
Title: Chairman
Praxair, Inc.
By: /s/ H.W. Lichtenberger
Name: H.W. Lichtenberger
Title: Chairman and CEO
PX Acquisition Corp.
By: /s/ David H. Chaifetz
Name: David H. Chaifetz
Title: President
<PAGE>
ANNEX A
Notwithstanding any other provision of the Initial Offer or the
Amended Offer and provided that Purchaser shall not be obligated to accept
for payment any Shares until expiration or termination of all applicable
waiting periods under the HSR Act and Investment Canada Act, Purchaser
shall not be required to accept for payment or pay for, or may delay the
acceptance for payment of or payment for, any tendered Shares, or subject
to the terms of the Merger Agreement may, in its sole discretion, terminate
or amend the Amended Offer as to any Shares not then paid for if:
(i) there is not tendered and not withdrawn prior to the Expiration
Date at least that number of Shares (the "Minimum Number of
Shares") that would represent a majority of all outstanding
Shares on a fully diluted basis on the date of purchase (the
"Minimum Tender Condition"). For purposes of the Amended
Offer, "on a fully diluted basis" means, as of any date, the
number of Shares outstanding together with Shares that the
Company is required to issue pursuant to obligations
outstanding at that date under convertible securities, stock
options or otherwise.
(ii) Purchaser is not, in its reasonable discretion, satisfied that
the Rights will not become exercisable upon consummation of the
Amended Offer;
(iii) Purchaser is not satisfied, in its reasonable discretion, that
after consummation of the Amended Offer, the restrictions
contained in Section 203 of the DGCL will not apply to the
Merger;
(iv) Purchaser is not satisfied, in its reasonable discretion, that
no supermajority vote will be required by Article Tenth or
Article Fifteenth of the Company Charter to approve the Merger
or that after consummation of the Amended Offer, Purchaser will
otherwise possess sufficient voting power to effect the Merger
without the affirmative vote of any person other than
Purchaser;
(v) On or after December 21, 1995 and at or before the time of
payment for any of such Shares any of the following shall
occur:
<PAGE>
(a) there shall have occurred and be continuing (i) any
general suspension of, or limitation on prices for,
trading in securities on the NYSE or in the over-
the-counter market, (ii) a declaration of a banking
moratorium or any suspension of payments in respect
of banks in the United States, (iii) a commencement
or escalation of a war, armed hostilities or other
international or national calamity directly or
indirectly involving the United States (other than
the current action in Bosnia), (iv) any limitation
(whether or not mandatory) by any Governmental
Entity, on the extension of credit by banks or
other lending institutions, (v) any significant
adverse change in interest rates or major stock
indices in the United States or abroad, including,
without limitation, a decline of at least 15% in
either the Dow Jones Average of Industrial Stocks
or the Standard & Poor's 500 index from that
existing at the close of business on December 21,
1995, (vi) a currency moratorium on or a suspension
of, the currency exchange markets in the United
States, or (vii) in the case of any of the
foregoing existing at the date hereof, a material
acceleration or worsening thereof;
(b) there shall be instituted or pending any action,
litigation, proceeding, investigation or other
application (hereinafter, an "Action") by any
Governmental Entity: (i) challenging the
acquisition by Praxair, Purchaser or any other
wholly-owned subsidiary of Praxair of Shares,
seeking to restrain or prohibit the consummation of
the transactions contemplated by the Agreement, the
Amended Offer or the Merger, seeking to obtain any
material damages or otherwise directly or
indirectly relating to the transactions con-
templated by the Agreement, the Amended Offer or
the Merger or other subsequent business com-
bination; (ii) seeking to prohibit, or impose any
<PAGE>
material limitations on, Praxair's, Purchaser's or
any other wholly-owned subsidiary of Praxair's
ownership or operation of all or any portion of
their or the Company's business or assets
(including the business or assets of their
respective affiliates and subsidiaries), or to
compel Praxair or Purchaser to dispose of or hold
separate all or any portion of Praxair's or
Purchaser's or the Company's business or assets
(including the business or assets of their respec-
tive affiliates and subsidiaries) as a result of
the transactions contemplated by the Agreement, the
Amended Offer or the Merger or other subsequent
business combination; (iii) seeking to make the
acceptance for payment, purchase of, or payment
for, some or all of the Shares illegal or render
Purchaser unable to, or result in a delay in, or
restrict, the ability of Purchaser to accept for
payment, purchase or pay for some or all of the
Shares; (iv) seeking to impose material limitations
on the ability of Praxair or Purchaser effectively
to acquire or hold or to exercise full rights of
ownership of the Shares including, without
limitation, the right to vote the Shares purchased
by them on an equal basis with all other Shares on
all matters properly presented to the stockholders
of the Company; or (v) that, in any event, in the
reasonable judgment of Purchaser, is reasonably
likely to have a Company Material Adverse Effect
(other than litigation disclosed in the Company
Disclosure Letter);
(c) any statute, rule, regulation, order, judgment or
injunction shall be enacted or entered with respect
to the Amended Offer or the Merger, or any other
action shall have been taken by any court or other
Governmental Entity other than the application to
the Amended Offer or the Merger of waiting periods
under the HSR Act that, in the reasonable judgment
of Praxair or Purchaser, might, directly or
indirectly, reasonably be expected to
<PAGE>
result in any of the effects of, or have any of the
consequences sought to be obtained or achieved in,
any Action referred to in clauses (i) through (v)
of paragraph (b) above;
(d) it shall have been publicly disclosed or Praxair
shall have learned that (i) any person, entity or
"group" (as defined in Section 13(d) of the
Exchange Act and the rules promulgated thereunder)
shall have become the beneficial owner (as defined
in Section 13(d) of the Exchange Act and the rules
promulgated thereunder) of more than ten percent of
the Shares (other than for bona fide arbitrage
purposes); or (ii) any person, entity or group
shall have entered into a definitive agreement or
an agreement in principle with the Company with
respect to the acquisition of more than 10% of the
Shares or a merger, consolidation or other business
combination with or involving the Company;
(e) any change shall have occurred or be threatened (or
any development shall have occurred or been
threatened involving a prospective change) in the
financial condition, businesses or results of
operations of the Company or any of its
Subsidiaries that is or is reasonably likely to be
materially adverse to the Company and its
Subsidiaries taken as a whole, or Praxair or
Purchaser shall have become aware of any fact
(including, but not limited to, any prior change)
that has or is reasonably likely to have a material
adverse effect on the value of the Shares or the
Company and its Subsidiaries taken as a whole to
Praxair or Purchaser;
(f) Purchaser or Praxair and the Company shall have
entered into an agreement that the Amended Offer be
terminated or amended; or
(g) the representations and warranties of the Company
set forth in the Agreement
<PAGE>
shall not be true and correct in any respect as of
the Expiration Date of the Amended Offer as though
made on or as of such date or the Company shall
have breached or failed in any material respect to
perform or comply with any material obligation,
agreement or covenant required by this Agreement to
be performed or complied with by it except, in each
case, (i) for changes specifically permitted by
this Agreement and (ii) (A) those representations
and warranties that address matters only as of a
particular date which are true and correct as of
such date or (B) where the failure of
representations and warranties (without regard to
materiality qualifications therein contained) to be
true and correct, or the performance or compliance
with such obligations, agreements or covenants, do
not, individually or in the aggregate, have a
material adverse effect on the Company and its
subsidiaries, taken as a whole;
(h) the Board (or a majority of the Disinterested
Directors) shall have amended, modified or
withdrawn its recommendation in favor of the
Amended Offer or the Merger, or shall have failed
publicly to reconfirm such recommendation upon
request by Praxair or Purchaser, or shall have
endorsed, approved or recommended any other Acqui-
sition Proposal, or shall have resolved to do any
of the foregoing; or
(i) the Agreement shall have been terminated by the
Company or Praxair or Purchaser in accordance with
its terms, or Praxair or Purchaser shall have
reached an agreement or understanding in writing
with the Company providing for delay in payment for
the Shares;
which, in the reasonable judgment of Purchaser in any such case, and
regardless of the circumstances (including, without limitation, any action
or inaction by Purchaser, Praxair or any other affiliate of Praxair) giving
rise to any such condition, makes it
<PAGE>
inadvisable to proceed with the Amended Offer or with acceptance for
payment or payment for Shares.
The foregoing conditions are for the sole benefit of Praxair and
Purchaser and their respective affiliates and may be asserted by Praxair
and Purchaser regardless of the circumstances (including, without
limitation, any action or inaction by Praxair, Purchaser or any of their
respective affiliates) giving rise to any such condition other than the
Minimum Tender Condition or may be waived by Praxair or Purchaser in whole
or in part at any time and from time to time in its sole discretion. The
failure by Praxair or Purchaser at any time to exercise any of the
foregoing rights will not be deemed a waiver of any such right, the waiver
of any such right with respect to particular facts and circumstances will
not be deemed a waiver with respect to any other facts and circumstances
and each such right will be deemed an ongoing right that may be asserted at
any time and from time to time.
<PAGE>
Table of Contents
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
The Amended Offer; Actions by the Company; Directors . . . 2
1.1. The Amended Offer . . . . . . . . . . . . . . . . . . . 2
1.2. Actions by the Company . . . . . . . . . . . . . . . . 4
1.3. Directors . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
The Merger; Closing; Effective Time . . . . . . . . 6
2.1. The Merger . . . . . . . . . . . . . . . . . . . . . . 6
2.2. Closing . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3. Effective Time . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
Certificate of Incorporation and By-Laws
of the Surviving Corporation . . . . . . . . . 7
3.1. The Certificate of Incorporation . . . . . . . . . . . 7
3.2. The By-Laws . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV
Officers and Directors
of the Surviving Corporation . . . . . . . . . 7
4.1. Directors . . . . . . . . . . . . . . . . . . . . . . . 7
4.2. Officers . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Further Assurances . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
Conversion or Cancellation of Shares in the Merger . . . . 8
5.1. Conversion or Cancellation of Shares . . . . . . . . . 8
(a) Conversion of Shares; Merger
Consideration . . . . . . . . . . . . . . . . 8
(b) Cancellation of Shares . . . . . . . . . . . . . 9
(c) Conversion of Purchaser Common
Stock . . . . . . . . . . . . . . . . . . . . 9
(d) Convertible Preferred Stock . . . . . . . . . . 9
(e) Cumulative Preferred Stock . . . . . . . . . . . 9
5.2. Payment for Shares . . . . . . . . . . . . . . . . . 10
5.3. Dissenters' Rights . . . . . . . . . . . . . . . . . . 11
5.4. Transfer of Shares After the Effective
Time . . . . . . . . . . . . . . . . . . . . . . . . 11
<PAGE>
ARTICLE VI
Representations and Warranties . . . . . . . . . 11
6.1. Representations and Warranties of the
Company . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Organization, Good Standing and
Qualification . . . . . . . . . . . . . . . . 11
(b) Capital Structure . . . . . . . . . . . . . . . 12
(c) Corporate Authority; Approval and
Fairness . . . . . . . . . . . . . . . . . . 13
(d) Governmental Filings; No Violations . . . . . . 14
(e) Company Reports; Financial
Statements . . . . . . . . . . . . . . . . . 15
(f) Absence of Certain Changes . . . . . . . . . . . 16
(g) Litigation and Liabilities . . . . . . . . . . . 17
(h) Employee Benefits . . . . . . . . . . . . . . . 18
(i) Compliance with Laws . . . . . . . . . . . . . . 20
(j) Takeover Statutes . . . . . . . . . . . . . . . 21
(k) Voting Requirements; Company
Articles . . . . . . . . . . . . . . . . . . 21
(l) Environmental Matters . . . . . . . . . . . . . 21
(m) Taxes . . . . . . . . . . . . . . . . . . . . . 22
(n) Labor Matters . . . . . . . . . . . . . . . . . 23
(o) Information . . . . . . . . . . . . . . . . . . 24
(p) Brokers and Finders . . . . . . . . . . . . . . 24
6.2. Representations and Warranties of Praxair
and Purchaser . . . . . . . . . . . . . . . . . . . . 24
(a) Organization . . . . . . . . . . . . . . . . . . 24
(b) Authority . . . . . . . . . . . . . . . . . . . 25
(c) Governmental Filings; No Violations . . . . . . 25
(d) Information . . . . . . . . . . . . . . . . . . 26
(e) Financing . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII
Covenants . . . . . . . . . . . . . . 27
7.1. Interim Operations . . . . . . . . . . . . . . . . . . 27
7.2. Acquisition Proposals . . . . . . . . . . . . . . . . . 28
7.3. Stockholders Meeting . . . . . . . . . . . . . . . . . 30
7.4. Filings; Other Actions; Notification . . . . . . . . . 30
7.5. Access . . . . . . . . . . . . . . . . . . . . . . . . 32
7.6. Publicity . . . . . . . . . . . . . . . . . . . . . . . 33
7.7. Benefits. . . . . . . . . . . . . . . . . . . . . . . . 33
(a) Stock Options . . . . . . . . . . . . . . . . . 33
(c) Employee Benefits . . . . . . . . . . . . . . . 33
7.8. Expenses . . . . . . . . . . . . . . . . . . . . . . . 34
7.9. Indemnification; Directors' and Officers'
Insurance . . . . . . . . . . . . . . . . . . . . . . 34
7.10. Other Actions by the Company and Praxair . . . . . . . 37
(a) Rights . . . . . . . . . . . . . . . . . . . . . 37
(b) Takeover Statute . . . . . . . . . . . . . . . . 37
(c) Termination of Litigation . . . . . . . . . . . 37
<PAGE>
7.11. Notification of Certain Matters . . . . . . . . . . . . 38
ARTICLE VIII
Conditions . . . . . . . . . . . . . . 38
8.1. Conditions to Obligations of Praxair and
Purchaser . . . . . . . . . . . . . . . . . . . . . . 38
(a) Stockholder Approval . . . . . . . . . . . . . . 38
(b) Purchase of Shares . . . . . . . . . . . . . . . 38
(c) Governmental and Regulatory
Consents . . . . . . . . . . . . . . . . . . 39
(d) Litigation . . . . . . . . . . . . . . . . . . . 39
(e) Other Obligations . . . . . . . . . . . . . . . 39
8.2. Conditions to Obligations of the Company . . . . . . . 39
(a) Stockholder Approval . . . . . . . . . . . . . . 39
(b) Purchase of Shares . . . . . . . . . . . . . . . 39
(c) Governmental Consents . . . . . . . . . . . . . 39
(d) Order . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE IX
Termination . . . . . . . . . . . . . . 40
9.1. Termination by Mutual Consent . . . . . . . . . . . . . 40
9.2. Termination by Either Praxair or the
Company . . . . . . . . . . . . . . . . . . . . . . . 40
9.3. Termination by Praxair . . . . . . . . . . . . . . . . 40
9.4. Termination by the Company . . . . . . . . . . . . . . 41
9.5. Effect of Termination and Abandonment . . . . . . . . . 41
ARTICLE X
Miscellaneous and General . . . . . . . . . . 43
10.1. Survival . . . . . . . . . . . . . . . . . . . . . . . 43
10.2. Modification or Amendment . . . . . . . . . . . . . . . 43
10.3. Waiver of Conditions . . . . . . . . . . . . . . . . . 43
10.4. Counterparts . . . . . . . . . . . . . . . . . . . . . 43
10.5. GOVERNING LAW AND VENUE; WAIVER OF JURY
TRIAL . . . . . . . . . . . . . . . . . . . . . . . . 43
10.6. Notices . . . . . . . . . . . . . . . . . . . . . . . . 44
10.7. Entire Agreement . . . . . . . . . . . . . . . . . . . 45
10.8. No Third Party Beneficiaries . . . . . . . . . . . . . 45
10.9. Obligations of Praxair and of the Company . . . . . . . 45
10.10. Severability. . . . . . . . . . . . . . . . . . . . . . 45
10.11. Interpretation . . . . . . . . . . . . . . . . . . . . 46
10.12. Assignment . . . . . . . . . . . . . . . . . . . . . . 46
<PAGE>
Supplement to Offer to Purchase Dated November 3, 1995
PX ACQUISITION CORP.
a Wholly Owned Subsidiary of
PRAXAIR, INC.
Has Increased the Price of its Offer to Purchase for Cash
All Outstanding Shares of Common Stock (Including the Associated Rights)
of
CBI INDUSTRIES, INC.
to
$33.00 NET PER SHARE
THE EXPIRATION DATE OF THE OFFER HAS BEEN AMENDED SUCH THAT THE
OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON
THURSDAY, JANUARY 11, 1996, UNLESS THE OFFER IS EXTENDED.
---------------
THE BOARD OF DIRECTORS OF CBI INDUSTRIES, INC. (THE "COMPANY") HAS
UNANIMOUSLY DETERMINED THAT EACH OF THE OFFER AND THE MERGER DESCRIBED
HEREIN IS FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF
THE COMPANY, HAS APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED THEREIN, INCLUDING THE OFFER AND THE MERGER, AND
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER
THEIR SHARES PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING TENDERED AND
NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE AT LEAST THAT NUMBER OF
SHARES (AS DEFINED BELOW) THAT WOULD REPRESENT A MAJORITY OF ALL
OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF
PURCHASE (THE "MINIMUM TENDER CONDITION"). THE OFFER IS ALSO
SUBJECT TO OTHER TERMS AND CONDITIONS. SEE THE INTRODUCTION
AND SECTION 8 OF THIS SUPPLEMENT. THE OFFER IS NO LONGER
SUBJECT TO THE FINANCING CONDITION.
ON DECEMBER 22, 1995, PRAXAIR, INC., PX ACQUISITION CORP. AND THE
COMPANY ENTERED INTO THE MERGER AGREEMENT. THE TERMS AND
CONDITIONS OF THE MERGER AGREEMENT ARE
SUMMARIZED IN SECTION 7 OF THIS
SUPPLEMENT.
---------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares (including the associated Rights) should either (i) complete and
execute either the original (yellow) or revised (green) Letter of Transmittal
(or a manually executed facsimile thereof) in accordance with the Instructions
in the Letter of Transmittal and mail or deliver it together with the
certificate(s) representing tendered Shares, and, if separate, the
certificate(s) representing the associated Rights, and any other required
documents to the Depositary, or, tender such Shares (and Rights, if
applicable) pursuant to the procedures for book-entry transfer set forth in
Section 2 of the Offer to Purchase (as defined below) or (ii) request his
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for him. A stockholder whose Shares are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee must contact
such broker, dealer, commercial bank, trust company or other nominee if he
desires to tender such Shares.
A stockholder who desires to tender his Shares and Rights, and whose
certificates for such Shares (and Rights, if applicable) are not immediately
available or who cannot comply with the procedures for book-entry transfer on
a timely basis, or who cannot deliver all required documents to the Depositary
prior to the Expiration Date may tender such Shares and Rights by following
the procedures for guaranteed delivery set forth in Section 2 of the Offer to
Purchase.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone
numbers set forth on the back cover of this Supplement. Additional copies of
this Supplement, the Offer to Purchase, the revised (green) Letter of
Transmittal, the revised (blue) Notice of Guaranteed Delivery and other
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks and trust companies.
---------------
The Dealer Manager for the Offer is:
CS First Boston
December 28, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INTRODUCTION.............................................................. 1
THE TENDER OFFER.......................................................... 3
1.Amended Terms of the Offer; Expiration Date............................. 3
2.Price Range of Shares; Dividends........................................ 3
3.Certain Information Concerning the Company.............................. 4
4.Certain Information Concerning the Purchaser and Praxair................ 4
5.Background of the Offer since November 3, 1995; Contacts with the
Company................................................................... 5
6.Plans for the Company................................................... 8
7.The Merger Agreement.................................................... 8
8.Certain Conditions to the Offer......................................... 15
9.Source and Amount of Funds.............................................. 18
10.Certain Legal Matters; Required Regulatory Approvals................... 18
11.Miscellaneous.......................................................... 18
</TABLE>
i
<PAGE>
To the Holders of Common Stock (including the Associated Rights) of CBI
Industries, Inc.:
INTRODUCTION
The following information amends and supplements the Offer to Purchase,
dated November 3, 1995 (the "Offer to Purchase"), of PX Acquisition Corp. (the
"Purchaser"), a Delaware corporation and a wholly owned subsidiary of Praxair,
Inc., a Delaware corporation ("Praxair"). Pursuant to this Supplement, the
Purchaser is now offering to purchase all outstanding shares of Common Stock,
par value $2.50 per share (the "Shares"), of CBI Industries, Inc., a Delaware
corporation (the "Company"), at a purchase price of $33.00 per Share, net to
the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase, as amended and supplemented
by this Supplement, and in the related revised (green) Letter of Transmittal
(which together constitute the "Offer"). Unless the context requires
otherwise, references herein to Shares shall include the associated rights
(the "Rights") issued pursuant to the Rights Agreement, dated as of March 4,
1986, as amended (the "Rights Agreement"), between the Company and First
Chicago Trust Company of New York, as Rights Agent, and, unless the
Distribution Date (as defined in the Offer to Purchase) occurs, any tender of
Shares shall constitute a tender of the associated Rights attached thereto.
All references herein to "Rights" shall include all benefits that inure to
holders of the Rights pursuant to the Rights Agreement. Except as otherwise
set forth in this Supplement and in the revised (green) Letter of Transmittal,
the terms and conditions previously set forth in the Offer to Purchase and the
related original (yellow) Letter of Transmittal remain applicable in all
respects to the Offer, and this Supplement should be read in conjunction with
the Offer to Purchase. Unless the context otherwise requires, terms not
defined herein have the meanings ascribed to them in the Offer to Purchase.
Procedures for tendering Shares are set forth in Section 2 of the Offer to
Purchase. Tendering stockholders may continue to use the original (yellow)
Letter of Transmittal and the original (gray) Notice of Guaranteed Delivery
previously circulated with the Offer to Purchase, or the revised (green)
Letter of Transmittal and the revised (blue) Notice of Guaranteed Delivery
circulated with this Supplement. While the Letter of Transmittal previously
circulated with the Offer to Purchase refers only to the Offer to Purchase,
stockholders using such document to tender their Shares will nevertheless be
deemed to be tendering pursuant to the amended Offer (including the amendments
and supplements made by this Supplement) and will receive the increased Offer
price per Share described in this Supplement if Shares are accepted for
payment and paid for by the Purchaser pursuant to the Offer.
SHARES PREVIOUSLY VALIDLY TENDERED AND NOT WITHDRAWN CONSTITUTE VALID
TENDERS FOR PURPOSES OF THE OFFER. STOCKHOLDERS ARE NOT REQUIRED TO TAKE ANY
FURTHER ACTION WITH RESPECT TO SUCH SHARES IN ORDER TO RECEIVE THE INCREASED
OFFER PRICE OF $33.00 PER SHARE IF SHARES ARE ACCEPTED FOR PAYMENT AND PAID
FOR BY THE PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE REQUIRED BY THE
GUARANTEED DELIVERY PROCEDURE IF SUCH PROCEDURE WAS UTILIZED. SEE SECTION 3 OF
THE OFFER TO PURCHASE FOR THE PROCEDURES FOR WITHDRAWING SHARES TENDERED
PURSUANT TO THE OFFER.
The Company, the Purchaser and Praxair have entered into an Agreement and
Plan of Merger, dated as of December 22, 1995 (the "Merger Agreement"), which
provides for, among other things, (i) an increase in the price per Share to be
paid pursuant to the Offer from $32.00 per Share to $33.00 per Share, net to
the seller in cash, (ii) the amendment and restatement of the conditions to
the Offer as set forth in their entirety in Section 8 of this Supplement,
(iii) the amendment to the Offer such that the Offer and withdrawal rights
will expire at 12:00 midnight, New York City time, on January 11, 1996 and
(iv) the merger of the Purchaser with and into the Company (the "Merger") as
promptly as is practicable following the consummation of the Offer. In the
Merger, each Share issued and outstanding immediately prior to the Merger
(other than any Shares held by Praxair, the Purchaser, any subsidiary of
Praxair or the Purchaser, in the treasury of the Company, or by any subsidiary
of the Company and other than any Dissenting Shares (as such term is defined
in the Merger
1
<PAGE>
Agreement)) shall be converted into the right to receive $33.00 in cash,
payable to the holder thereof, without interest thereon, upon surrender of the
certificate formerly representing such Share.
THE BOARD OF DIRECTORS (THE "BOARD") OF THE COMPANY HAS UNANIMOUSLY
DETERMINED THAT EACH OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST
INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, HAS APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING THE OFFER AND
THE MERGER, AND RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES PURSUANT TO THE OFFER.
Pursuant to the Merger Agreement, the Company has covenanted to Praxair and
the Purchaser that it, acting through its Board, shall take all necessary
action (and shall notify Praxair of any such actions taken) prior to the
Expiration Date (as defined below) including, without limitation,
supplementing or amending the Rights Agreement to ensure that, so long as the
Merger Agreement has not been terminated, the Offer is a "Permitted Tender
Offer" (as defined in the Rights Agreement) (it being understood that the
Company shall amend the definition of "Permitted Tender Offer" in the Rights
Agreement), no "Distribution Date" (as defined in the Rights Agreement) will
occur and Section 11.1(b) of the Rights Agreement will not be triggered, in
each case as a result of the announcement, commencement or consummation of the
Offer or the execution or delivery of the Merger Agreement with the effect
that none of such events will trigger the exercisability of the Rights or the
separation of the Rights from the certificates to which they are attached. So
long as the Merger Agreement has not been terminated, the Board shall also
take all further action (in addition to that referred to above) requested in
writing by Praxair or Purchaser (including redeeming the Rights immediately
prior to the Effective Time (as defined in the Merger Agreement) or amending
the Rights Agreement) in order to render the Rights inapplicable to the Merger
and the other transactions contemplated by the Merger Agreement. As a result
of such amendments, the Rights will continue to be evidenced by certificates
for the Shares and the requirement for a separate tender of Rights described
in the Offer to Purchase will not apply unless a Distribution Date occurs for
reasons unrelated to the Offer and the Merger.
On December 7, 1995, Praxair announced that it had entered into the Credit
Agreement (as defined below), and that the Financing Condition has been
satisfied.
The Offer is subject to the fulfillment of, among other things, the
following condition:
Minimum Tender Condition. CONSUMMATION OF THE OFFER IS CONDITIONED (THE
"MINIMUM TENDER CONDITION") UPON THERE BEING TENDERED AND NOT WITHDRAWN PRIOR
TO THE EXPIRATION DATE (AS DEFINED IN SECTION 1 OF THIS SUPPLEMENT) AT LEAST
THAT NUMBER OF SHARES THAT WOULD REPRESENT A MAJORITY OF ALL OUTSTANDING
SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE. FOR PURPOSES OF THE
OFFER, "ON A FULLY DILUTED BASIS" MEANS, AS OF ANY DATE, THE NUMBER OF SHARES
OUTSTANDING TOGETHER WITH SHARES THAT THE COMPANY IS REQUIRED TO ISSUE
PURSUANT TO OBLIGATIONS OUTSTANDING AT THAT DATE UNDER CONVERTIBLE SECURITIES,
STOCK OPTIONS OR OTHERWISE. CERTAIN OTHER TERMS AND CONDITIONS TO THE
CONSUMMATION OF THE OFFER ARE DESCRIBED IN SECTION 8 OF THIS SUPPLEMENT.
On December 26, 1995, there were outstanding 38,703,969 Shares and 3,429,842
Convertible Preferred Shares. According to the Restated Company Certificate of
Incorporation and representations and warranties made by the Company in the
Merger Agreement, each Convertible Preferred Share is convertible into 1.5
Shares. In addition, there were 1,284,450 Shares subject to issuance pursuant
to outstanding stock options. As a result, the Minimum Tender Condition would
be satisfied if at least 22,566,592 Shares were validly tendered and not
withdrawn prior to the Expiration Date.
THIS SUPPLEMENT, THE OFFER TO PURCHASE AND THE RELATED REVISED (GREEN)
LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ
CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
2
<PAGE>
THE TENDER OFFER
1. AMENDED TERMS OF THE OFFER; EXPIRATION DATE. Pursuant to the Merger
Agreement, the Offer has been amended. The price per Share to be paid pursuant
to the Offer has been increased from $32.00 per Share to $33.00 per Share, net
to the seller in cash, upon the terms and subject to the conditions of the
Offer. All stockholders whose Shares are validly tendered and not withdrawn
and accepted for payment pursuant to the Offer (including Shares tendered and
not withdrawn prior to the date of this Supplement) will receive the increased
price.
As a result of an amendment to the Rights Agreement to be executed by the
Company pursuant to the Merger Agreement, so long as the Merger Agreement has
not been terminated the Distribution Date will not occur as a result of the
announcement, commencement or consummation of the Offer or the execution or
delivery of the Merger Agreement. The Rights will continue to be evidenced by
certificates for the Shares and the requirement for a separate tender of
Rights described in the Offer to Purchase will not apply unless a Distribution
Date occurs.
STOCKHOLDERS WILL BE REQUIRED TO TENDER TWO-THIRDS (2/3) OF A RIGHT (SUBJECT
TO ADJUSTMENT) FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF
SHARES UNDER THE OFFER. ACCORDINGLY, STOCKHOLDERS WHO SELL THEIR RIGHTS
SEPARATELY FROM THEIR SHARES, IN THE EVENT OF A DISTRIBUTION DATE, AND DO NOT
OTHERWISE ACQUIRE RIGHTS MAY NOT BE ABLE TO SATISFY THE REQUIREMENTS OF THE
OFFER FOR A VALID TENDER OF SHARES. UNLESS A DISTRIBUTION DATE OCCURS, A
TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS.
Pursuant to the Merger Agreement, the Offer has been amended such that the
Offer will expire at 12:00 midnight, New York City time, on Thursday, January
11, 1996, unless and until the Purchaser, subject to the provisions of the
Merger Agreement, shall have extended the period during which the Offer is
open (the term "Expiration Date" shall mean 12:00 midnight, New York City
time, on Thursday, January 11, 1996 or any later time and date at which the
Offer, as so extended by the Purchaser, shall expire). As of the close of
business on December 27, 1995, 12,933,232 Shares had been tendered into the
Offer. See Section 7 of this Supplement for a description of the provisions of
the Merger Agreement regarding extensions of the Offer by the Purchaser.
The Offer is conditioned upon satisfaction of the Minimum Tender Condition
described above in the Introduction and each of the conditions described in
Section 8 of this Supplement. The Purchaser reserves the right (but shall not
be obligated), subject to the provisions of the Merger Agreement, to waive any
or all of such conditions (other than the Minimum Tender Condition).
The Company is providing the Purchaser with the Company's stockholder list
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Supplement, the revised (green) Letter of Transmittal
and other relevant materials will be mailed to record holders of Shares whose
names appear on the Company's stockholder list and will be furnished to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the Company's stockholder
list or who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of Shares by
the Purchaser following receipt of such lists from the Company.
2. PRICE RANGE OF SHARES; DIVIDENDS. The reported high and low sale prices
for the Shares on the New York Stock Exchange, Inc. ("NYSE") Composite Tape
during the fourth quarter (through December 27, 1995) of the year ending
December 31, 1995 were $34.00 and $19.00, respectively. On December 15, 1995,
the Company paid a $0.12 dividend per Share, which was declared on October 11,
1995. On December 21, 1995, the last full day of trading prior to the
announcement of the execution of the Merger Agreement, the reported closing
price on the NYSE Composite Tape for the Shares was $32.25. STOCKHOLDERS ARE
URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
See Section 7 of this Supplement for a discussion of certain limitations
contained in the Merger Agreement on the ability of the Company to declare and
pay dividends.
3
<PAGE>
3. CERTAIN INFORMATION CONCERNING THE COMPANY. The selected financial
information of the Company and its consolidated subsidiaries set forth below
has been excerpted and derived from the Company's Quarterly Reports on Form
10-Q for the quarter ended September 30, 1995 and the quarter ended September
30, 1994. More comprehensive financial and other information is included in
such reports (including management's discussion and analysis of results of
operations and financial position) and in other reports and documents filed by
the Company with the Securities and Exchange Commission (the "Commission") and
the financial information set forth below is qualified in its entirety by
reference to such reports and documents filed with the Commission and all of
the financial statements and related notes contained therein. These reports
and other documents may be examined and copies thereof may be obtained in the
manner set forth in Section 8 of the Offer to Purchase.
CBI INDUSTRIES, INC.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
----------------------------
<S> <C> <C>
SEPTEMBER 30, SEPTEMBER 30,
1995 1994
------------- --------------
(UNAUDITED)
SUMMARY OF EARNINGS DATA:
Revenues....................................... $1,385,716 $1,361,064
Income from operations......................... 115,977 104,638
Income before taxes and minority interest...... 79,608 75,751
Net income to holders of Shares................ 27,733 28,107
Net income per Share........................... 0.73 0.74
Net income per fully diluted Share............. 0.67 0.69
BALANCE SHEET DATA:(1)
Total assets................................... $2,124,373 $1,989,769
Current assets................................. 541,116 525,969
Current liabilities............................ 351,618 369,873
Long-term debt................................. 716,331 680,190
Common stockholders' equity.................... 696,814 671,674
</TABLE>
- --------
(1) At period end.
Neither Praxair nor the Purchaser takes responsibility for the accuracy or
completeness of information contained in this Supplement with respect to the
Company or any of its subsidiaries or affiliates or for any failure by the
Company to disclose events which may have occurred or may affect the
significance or accuracy of any such information.
4. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PRAXAIR. The Purchaser,
a Delaware corporation, which is a wholly owned subsidiary of Praxair, was
organized to acquire the Company and has not conducted any unrelated
activities since organization. The principal office of the Purchaser is
located at the principal office of Praxair. All outstanding shares of capital
stock of the Purchaser are owned by Praxair.
Praxair is the largest supplier of industrial gases in North and South
America and one of the three largest worldwide. The gases find wide use in the
primary metals, metal fabrication, chemicals, medical, electronics, petroleum
refining, aerospace, food processing, oil and gas, glass, environmental
remediation, printing and pulp and paper industries.
Praxair's industrial gases business began in 1907 with the founding of the
Linde Air Products Company, the first company in the United States to produce
oxygen from air using a cryogenic process. Praxair has been,
4
<PAGE>
and continues to be, a major technological innovator in the industrial gases
industry and has done much to create value for its customers by developing new
applications for industrial gases and to open new markets by lowering the cost
of supply.
The selected financial information of Praxair and its consolidated
subsidiaries set forth below has been excerpted and derived from Praxair's
Quarterly Reports on Form 10-Q for the quarter ended September 30, 1995 and
the quarter ended September 30, 1994. More comprehensive financial and other
information is included in such reports (including management's discussion and
analysis of results of operations and financial position) and in other reports
and documents filed by Praxair with the Commission and the financial
information set forth below is qualified in its entirety by reference to such
reports and documents filed with the Commission and all of the financial
statements and related notes contained therein. These reports and other
documents may be examined and copies thereof may be obtained in the manners
set forth in Section 9 of the Offer to Purchase.
PRAXAIR, INC.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
---------------------------
<S> <C> <C>
SEPTEMBER 30, SEPTEMBER 30,
1995 1994
------------- -------------
(UNAUDITED)
SUMMARY OF EARNINGS DATA:
Sales............................................. $ 2,339 $ 1,989
Income from operations............................ 411 328
Income before taxes and minority interests........ 323 249
Net income to common stockholders................. 196 148
Net income per share of common stock.............. 1.37 1.06
BALANCE SHEET DATA:(1)
Total assets...................................... $ 3,929 $ 3,423
Current assets.................................... 890 800
Current liabilities............................... 1,016 747
Long-term debt.................................... 936 963
Common stockholders' equity....................... 1,048 817
</TABLE>
- --------
(1) At period end.
5. BACKGROUND OF THE OFFER SINCE NOVEMBER 3, 1995; CONTACTS WITH THE
COMPANY. On November 16, 1995, the Company filed a Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") with the Commission stating
that the Board unanimously recommended that the Company's stockholders reject
the Offer and not tender any Shares pursuant thereto. The Schedule 14D-9 also
stated that the Company was in the preliminary stages of discussion and
negotiation concerning a possible extraordinary transaction involving the
Company, having entered into confidentiality and standstill agreements
concerning the furnishing of confidential information to parties indicating an
interest in such a transaction and having responded to due diligence
inquiries. The Schedule 14D-9 stated that, in addition, the Company had
preliminary discussions with other parties regarding their potential interest
in such a transaction.
5
<PAGE>
On November 17, 1995, Praxair sent the following letter to the Company:
November 17, 1995
Mr. John E. Jones
Chairman, President
and Chief Executive Officer
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Dear John:
As CBI Industries, Inc. ("CBI") indicated in its Solicitation/Recommendation
Statement on Schedule 14D-9, dated November 16, 1995, CBI is actively
exploring alternatives to maximize stockholder value. In that regard, CBI has
(i) entered into agreements concerning the furnishing of confidential
information to other parties, (ii) responded to due diligence inquiries and
(iii) had preliminary discussions with other parties regarding such other
parties' potential interest in entering into, among other things, an
extraordinary transaction with CBI.
As stated in my letter to you, dated October 27, 1995, our offer to acquire
CBI at $32 per share is based on publicly available information. We object
strongly to the provision by CBI of non-public information relating to CBI or
any of its subsidiaries and access to any individuals within CBI or any of its
subsidiaries to any other party interested in the purchase of or a business
combination with CBI without the contemporaneous provision of such information
and access to Praxair, Inc. ("Praxair").
We believe that in connection with any discussions regarding the possible
sale of CBI, it is the fiduciary duty of the CBI Board of Directors to
maximize the value of CBI for its stockholders. We additionally believe that
to do so (and to properly discharge such fiduciary duty) the CBI Board of
Directors must, among other things, ensure that all interested parties are
placed on a "level playing field" with regard to non-public information and
access to individuals. In this regard, Praxair is prepared to promptly enter
into a standard confidentiality agreement, which agreement would not, of
course, contain any inappropriate provisions restricting our ability to make
offers to or otherwise communicate with CBI or its stockholders.
In addition, we are amending our complaint in Delaware to require that CBI
maintain a "level playing field" and provide non-public information and access
to individuals on a comparable and contemporaneous basis.
Please provide to us such a confidentiality agreement and, subsequent to the
execution thereof, any non-public information and access to individuals which
have already been provided to other interested parties. Additionally, please
implement proper procedures to ensure that Praxair receives at least
contemporaneously all such non-public information and access to individuals
provided to other interested parties in the future.
Very truly yours,
/s/ H. William Lichtenberger
---------------------------------
H. WILLIAM LICHTENBERGER
On November 21, 1995, Praxair announced that it had received a request for
additional information from the Federal Trade Commission ("FTC") pursuant to
the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended ("HSR
Act"), that it was in the process of complying with such request, and that the
initial 15-day waiting period under the HSR Act was extended.
On December 5, 1995, Praxair and the Company entered into a confidentiality
agreement. Among other things, the confidentiality agreement granted Praxair
the right to review certain non-public information concerning the Company on a
comparable basis to the access to such information provided by the Company to
other third parties. The confidentiality agreement also provided that, except
under certain conditions, neither
6
<PAGE>
Praxair nor any of its 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 Praxair, with respect to a transaction or
transactions for the acquisition of all or a majority of the Company's assets
or securities.
Pursuant to the terms of the confidentiality agreement, Praxair was granted
an opportunity to conduct a limited due diligence investigation of certain
public and nonpublic information of the Company (which investigation included
interviews with certain members of the Company's management). During the
course of its review, Praxair was provided by the Company with, among other
things, (i) certain financial information regarding each of the Company's
businesses and (ii) certain consolidated Company projections for the period
1995 through 1998, which showed a compound annual growth rate for the
projection period of 8%, 19% and 42% for revenues, income from operations, and
net income to common shareholders, respectively.
Such projections reflect various assumptions by the Company which may or may
not prove to be accurate and there can be no assurance that such results will
be realized. As the foregoing projections were supplied by the Company,
Praxair and the Purchaser take no responsibility for, and make no
representations or warranties, expressed or implied, as to the accuracy or
completeness of such projections. Disclosure thereof is being made herein
solely because both Praxair and the Purchaser are in possession of such
projections. Neither Praxair nor the Purchaser has knowledge of the Company's
past ability to meet previous projections and neither Praxair nor the
Purchaser is providing any assurances that such projections will be met in the
amounts and at the times contemplated thereby.
The Company prepared such projections in connection with its exploration of
alternatives to maximize stockholder value. Such projections were not prepared
for, or with a view toward, dissemination to the public. Such projections were
not prepared in accordance with published guidelines of the American Institute
of Certified Public Accountants or the Commission regarding projections and
forecasts, nor have such projections been audited, examined or otherwise
reviewed by independent auditors of the Company. In addition, such projections
are based upon many estimates and are inherently subject to significant
economic and competitive uncertainties and contingencies, many of which are
beyond the control of management of the Company. Accordingly, actual results
may be materially higher or lower than those projected. The inclusion of such
projections herein should not be regarded as a representation by the Company
or any other person that the projections will prove to be correct.
On December 19, 1995 Praxair sent the following letter to the Company:
December 19, 1995
Mr. John E. Jones
Chairman, President and
Chief Executive Officer
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60522-7001
Dear John:
As I indicated to you during our telephone conversation this morning,
Praxair is prepared to increase its offer to acquire CBI Industries to $33 a
share subject to the Board of Directors of CBI accepting such proposal and CBI
and Praxair entering into a mutually satisfactory merger agreement by 5:00
p.m., Thursday, December 21, 1995.
Praxair is communicating this proposal to you at this time in the interest
of bringing this matter to a prompt and satisfactory conclusion. We think that
the underlying values for the businesses and operations of CBI can best be
preserved if this matter is resolved without any further significant delay.
7
<PAGE>
We understand that your Board of Directors will want to carefully consider
our proposal and obtain the opinion of its investment bankers as to the
fairness of the proposed price of $33 per share. However, as you can
appreciate, with a proposal of this sort, time is of the essence. Therefore,
if our proposal is not accepted by the deadline set forth above, it will be
withdrawn, in which case Praxair would intend to continue with its tender
offer for shares of CBI at $32 per share. Furthermore, you should appreciate
that Praxair reserves the right in the future to reduce the price it is
offering in its tender offer if the businesses and operations of CBI are
impaired as a result of any prolonged delay in the resolution of this matter.
I continue to be hopeful that you and your Board of Directors will accept
our offer, and we look forward to receiving your prompt response.
Sincerely,
/s/ H. William Lichtenberger
---------------------------------
H. WILLIAM LICHTENBERGER
On December 22, 1995, Praxair issued a press release announcing that, at the
request of the Board of Directors of the Company, it had extended the deadline
for its proposed expedited merger agreement at $33.00 per Share with the
Company until 1:00 p.m. Eastern time on Friday, December 22.
Also on December 22, 1995, Praxair issued a press release announcing that
discussions were underway with the Company regarding Praxair's expedited
$33.00 per Share merger offer.
Also on December 22, 1995, the Board of Directors of the Company met and
unanimously approved the Merger Agreement, the Offer and the Merger,
determined that each of the Offer and the Merger are fair to and in the best
interests of the holders of Shares and voted to recommend that the
stockholders of the Company accept the Offer. On the same day, the Board of
Directors of Praxair approved the Merger Agreement. The Merger Agreement was
thereafter executed on December 22, 1995 by Praxair, the Purchaser and the
Company, and Praxair and the Company issued a joint press release announcing
the execution of the Merger Agreement.
On December 28, 1995, the Purchaser and Praxair amended the Offer as
required by the Merger Agreement. Also on December 28, 1995, the Company filed
an amendment to its Schedule 14D-9, containing, among other things, (i) the
recommendation of the Board that the stockholders of the Company accept the
Offer and (ii) the opinion of Lehman Bros. Inc. and Merrill Lynch & Co. Inc.,
its financial advisors, that the consideration to be received by the
stockholders of the Company pursuant to the Offer and the Merger is fair to
such stockholders from a financial point of view.
6. PLANS FOR THE COMPANY. Pursuant to the Merger Agreement, Praxair, the
Purchaser and the Company have agreed, among other things, to modify the
composition of the Board to include designees of Praxair following
consummation of the Offer and to make certain changes to the Company
Certificate of Incorporation and By-Laws as of the Effective Time. See Section
7 of this Supplement.
7. THE MERGER AGREEMENT. The following is a summary of the Merger Agreement,
a copy of which is attached as Exhibit (a)(27) to Amendment No. 16 to Praxair
and the Purchaser's Schedule 14D-1 filed with the Commission with respect to
the Offer. Such summary is qualified in its entirety by reference to the text
of the Merger Agreement.
The Amended Offer. Pursuant to the Merger Agreement, Praxair and the
Purchaser have agreed, subject to certain conditions, to amend the Offer (i)
to increase the price per Share to be paid pursuant to the Offer from $32.00
per Share to $33.00 per Share, net to the seller in cash, (ii) to amend and
restate the conditions to the Offer as set forth in their entirety in Section
8 of this Supplement, (iii) to amend the Offer such that the Offer and
withdrawal rights will expire at 12:00 midnight, New York City time, on
Thursday, January 11, 1996 and (iv) to provide for the Merger as promptly as
is practicable following the consummation of the Offer.
8
<PAGE>
The Purchaser also agreed to extend the expiration date of the Offer to
12:00 midnight, New York City time, on Thursday, January 11, 1996. In
addition, the Purchaser has agreed that it will not, without the prior written
consent of the Company, decrease the price per Share or change the form of
consideration payable in the Offer, decrease the number of Shares sought or
extend the Offer (other than as set forth in the next paragraph), amend or
waive the Minimum Tender Condition, impose additional conditions to the Offer
or amend any other term of the Offer in any manner adverse to the holders of
Shares. The Purchaser further agreed that, upon the terms and subject to the
conditions of the Offer, the Purchaser will accept for payment and will
purchase, as soon as permitted under the terms of the Offer, all Shares
validly tendered and not withdrawn prior to the expiration of the Offer.
Praxair and Purchaser also agreed that Purchaser shall not terminate or
withdraw the Offer or extend the scheduled Expiration Date unless at the
Expiration Date the conditions to the Offer described in Annex A of the Merger
Agreement (as set forth in their entirety in Section 8 of this Supplement)
shall not have been satisfied or earlier waived. If at the Expiration Date,
such conditions shall not have been satisfied or earlier waived, Purchaser may
and, if requested by the Company, will (subject to certain exceptions) extend
the Expiration Date on one or more occasions for an additional period or
periods of time until the earlier of (i) the date which is sixty business days
following the date of the Offer or (ii) the date the Merger Agreement is
terminated in accordance with its terms.
Company Actions. Pursuant to the Merger Agreement, the Company has approved
of and consented to the Offer and represented that (i) the Board, by vote of
all directors at a meeting duly called and held, has, in light of and subject
to the terms and conditions set forth in the Merger Agreement, unanimously (x)
determined that each of the Offer and the Merger is fair to, and in the best
interests of, the stockholders of the Company and (y) approved the Merger
Agreement and the transactions contemplated thereby, including the Offer and
the Merger, and recommended acceptance of the Offer and approval and adoption
of the Merger Agreement and the Merger by the stockholders of the Company and
(ii) Merrill Lynch & Co. and Lehman Brothers Inc., the Company's financial
advisors, have rendered to the Board their respective opinions that the
consideration to be received by the stockholders of the Company pursuant to
the Offer and the Merger is fair to such stockholders from a financial point
of view.
The Company also has agreed that it shall, on the same day that Purchaser
and Praxair file with the Commission this amendment to their Tender Offer
Statement on Schedule 14D-1 (and after review by Praxair and the Purchaser),
file with the Commission and cause to be disseminated to stockholders of the
Company, an amendment to the Schedule 14D-9 with respect to the Offer
(together with any amendments or supplements thereto, the "Amended Schedule
14D-9") which amendment shall include, subject to the next sentence, the
recommendation described in the preceding paragraph. Subject to the provisions
of the Merger Agreement described under "Termination" below, such
recommendation may be withdrawn, modified or amended to the extent that the
Board deems it necessary to do so in the exercise of its fiduciary and other
legal obligations after being so advised by outside counsel.
Pursuant to the Merger Agreement, promptly upon the purchase of and payment
for any Shares by the Purchaser pursuant to the Offer which represent at least
a majority of the Shares (on a fully diluted basis) and from time to time
thereafter, Praxair and Purchaser will be entitled to designate members of the
Board such that Praxair and Purchaser will have a number of representatives on
the Board, rounded up to the next whole number, equal to the product of (x)
the total number of directors on the Board multiplied by (y) the percentage of
the outstanding Shares beneficially owned by Purchaser or its affiliates. The
Company will, upon request by Praxair or Purchaser, promptly increase the size
of the Board to the extent permitted by the Restated Company Certificate of
Incorporation and, if necessary, secure the resignations of such number of
directors as is necessary to enable Praxair's designees to be elected to the
Board and will cause Praxair's designees to be so elected.
The Company's obligations to appoint Praxair's designees to the Board are
subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder. The Company has agreed to include in the Amended Schedule 14D-9
such information with respect to the Company and its officers and directors
(including any of Praxair's designees), in form and substance satisfactory to
Praxair, as is required under such Section and Rule.
9
<PAGE>
Following the election or appointment of Praxair's designees and prior to
the Effective Time, any action to be taken by the Board with respect to the
Merger Agreement will require approval by a majority of those directors of the
Company who have not been designated by Praxair or the Purchaser. Until the
Effective Time, the Company and Praxair will use all reasonable efforts to
retain as members of the Board at least two directors who at the time are
neither officers of Praxair or the Company (or any of their respective
affiliates), nor designees of Purchaser (or any of its affiliates), nor
shareholders or affiliates of Purchaser (or any respective affiliate).
The Merger. The Merger Agreement provides that in accordance with the
provisions thereof, at the Effective Time, the Purchaser will be merged with
and into the Company, and the Company will be the surviving corporation in the
Merger (hereinafter sometimes called the "Surviving Corporation") and will
continue to be governed by the laws of the State of Delaware. At the Effective
Time, the separate corporate existence of the Purchaser shall cease.
Pursuant to the Merger Agreement, as of the Effective Time, by virtue of the
Merger and without any action on the part of the holders of the Shares, each
Share issued and outstanding immediately prior to the Effective Time (other
than any Shares owned by Praxair, the Purchaser or any other subsidiary of
Praxair or Shares which are held by dissenting stockholders exercising
appraisal rights pursuant to Section 262 of the DGCL) will be converted into
the right to receive, without interest, $33.00 in cash or such greater amount
which may be paid pursuant to the Offer. For a description of certain
appraisal rights available to stockholders under Delaware law in connection
with the Merger, see Section 15 of the Offer to Purchase.
As of the Effective Time, by virtue of the Merger and without any action on
the part of the Purchaser or the holder thereof, each share of Common Stock,
par value $0.01 per share, of Purchaser issued and outstanding immediately
prior to the Effective Time will be converted into one issued and outstanding
share of common stock of the Surviving Corporation.
Pursuant to the Merger Agreement, at the Effective Time, each share of the
Convertible Preferred Shares will remain outstanding and will be entitled to
the same dividend and other relative rights, preferences, limitations and
restrictions as are now provided by the Restated Company Certificate of
Incorporation, except that, after the Effective Time, they shall be
convertible into the amount of cash that the holder thereof would have been
entitled to receive if such holder had converted such Convertible Preferred
Shares into Shares immediately prior to the Effective Time.
Pursuant to the Merger Agreement, each share of 7.48% Cumulative Preferred
Stock, Series D of the Company, par value $1.00 per share, and $6.75
Cumulative Preferred Stock, Series E of the Company, par value $1.00 per
share, which immediately prior to the Effective Time is issued and outstanding
shall remain outstanding and shall be entitled to the same dividend and other
relative rights, preferences, limitations and restrictions as are now provided
by the Restated Company Certificate of Incorporation.
Under the Merger Agreement, the Company has agreed to take all actions
necessary to provide that, immediately prior to the consummation of the Offer,
each outstanding option ("Company Option") to purchase Shares under the
Company's Stock Plans (as defined in the Merger Agreement) which is not then
exercisable will be exercisable in full and each Company Option (and each
related stock appreciation right) outstanding prior to the Effective Time
pursuant to any of the Stock Plans, whether or not then exercisable, will be
canceled and only entitle the holder thereof, upon surrender thereof, to
receive an amount in cash equal to the difference between $33.00 (or such
greater amount which may be paid pursuant to the Offer) and the exercise price
per Share of such Company Option multiplied by the number of Shares previously
subject to such Company Option (such payment to be net of applicable
withholding taxes).
The Merger Agreement also provides that, subject to certain exceptions, (i)
the Stock Plans will terminate immediately following the purchase of Shares
pursuant to the Offer and the provisions in any other plan, program or
arrangement, providing for the issuance or grant of any other interest in
respect of the capital stock of the
10
<PAGE>
Company or any of its subsidiaries will be deleted as of the Effective Time
and (ii) the Company will use all reasonable efforts to ensure that following
the Effective Time no holder of Company Options or any participant in the
Stock Plans or any other plans, programs or arrangements shall have any right
thereunder to acquire any equity securities of the Company, the Surviving
Corporation or any subsidiary thereof.
The Merger Agreement provides that the Restated Company Certificate of
Incorporation will be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided by law and that the by-laws
of the Purchaser in effect at the Effective Time will be the by-laws of the
Surviving Corporation until thereafter amended as provided by law.
Under the Merger Agreement, subject to applicable law, the directors of the
Purchaser at the Effective Time will be the initial directors of the Surviving
Corporation and will hold office until their respective successors are duly
elected or appointed and qualified or until their earlier death, resignation
or removal.
Pursuant to the Merger Agreement, the officers of the Company at the
Effective Time will be the initial officers of the Surviving Corporation and
will hold office until their respective successors are duly appointed and
qualified, or their earlier death, resignation or removal.
Agreements of the Company, Praxair and the Purchaser. The Merger Agreement
provides that the Company, acting through the Board, will take, in accordance
with applicable law, the Restated Company Certificate of Incorporation and the
Company's by-laws, all action necessary to duly call, give notice of, convene
and hold a special meeting of stockholders (the "Special Meeting") as soon as
practicable after the purchase of Shares by Purchaser pursuant to the Offer
for the purpose of considering and taking action upon the Merger and the
Merger Agreement and such other matters as may be necessary to consummate the
transactions contemplated by the Merger Agreement. Subject to the fiduciary
obligations of the Board under applicable law as advised by outside counsel,
the Board will recommend approval of the Merger and the adoption of the Merger
Agreement. The Merger Agreement provides that Praxair will cause the Shares
acquired in the Offer, and any additional Shares owned by it or its
affiliates, to be voted in favor of the Merger Agreement and the Merger.
The Merger Agreement further provides that the Company, acting through its
Board, in consultation with Praxair, shall, following consummation of the
Offer, file with the Commission a preliminary proxy statement (or, if
applicable, a preliminary information statement) relating to the matters to be
considered at the Special Meeting and use its reasonable best efforts (x) to
obtain and furnish the information required to be included in the proxy
statement (or, if applicable, a preliminary information statement) and, after
consultation with Praxair, to respond promptly to any comments made by the
Commission with respect to the preliminary proxy statement (or, if applicable,
a preliminary information statement) and to cause a definitive proxy statement
(or, if applicable, a definitive information statement) to be mailed to its
stockholders and (y) subject to the fiduciary obligations of the Board under
applicable law as advised by outside counsel, to obtain from its stockholders
the necessary approvals of the Merger, the Merger Agreement and such other
matters as may be necessary to consummate the transactions contemplated by the
Merger Agreement. Subject to the fiduciary obligations of the Board under
applicable law as advised by outside counsel, the Board will include in the
proxy statement the recommendation of the Board that stockholders of the
Company vote in favor of the approval of the Merger and the adoption of the
Merger Agreement.
In the Merger Agreement, the Company has covenanted and agreed as to itself
and its subsidiaries that, except as contemplated by the Merger Agreement or
as expressly agreed to in writing by Praxair, during the period from the date
of the Merger Agreement to the date on which Purchaser's nominees comprise a
majority of the Board, among other things, (i) each of the Company and its
subsidiaries will conduct its business in the ordinary and usual course
consistent with past practice, and the Company will use its reasonable best
efforts to preserve its business organization intact and maintain its existing
relations and goodwill with customers, suppliers, distributors, creditors,
lessors, employees and business associates; (ii) it will not declare, set
aside or pay any dividend payable in cash, stock or property in respect of any
Shares or preferred shares other than regular
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quarterly or semi-annual cash dividends not in excess of $0.12 per Share and
regular quarterly or semi-annual cash dividends on the preferred shares; and
(iii) neither the Company nor any of its subsidiaries will make any
commitments for, make or authorize any capital expenditures other than
existing capital expenditures required to be made pursuant to existing capital
projects which have been previously authorized or, by any means, make any
acquisition of, or investment in, assets or stock of any other Person or
entity.
Pursuant to the Merger Agreement, the Company has agreed that neither it nor
any of its subsidiaries nor any of the officers and directors of it or its
subsidiaries will, and that it will direct and use its best efforts to cause
its and its subsidiaries' employees, agents and representatives (including any
investment banker, attorney or accountant retained by it or any of its
subsidiaries) not to, directly or indirectly, initiate, solicit, encourage or
otherwise facilitate any inquiries or the making of any proposal or offer with
respect to a merger, reorganization, consolidation or similar transaction
involving, or any purchase of all or any significant portion of the assets or
any equity securities of it or any of its subsidiaries (any such proposal or
offer being hereinafter referred to as an "Acquisition Proposal"), (it is
agreed that any action permitted under the exception in the next sentence will
not be deemed a prohibited initiation, solicitation, encouragement or
facilitation). The Company further agreed that neither it nor any of its
subsidiaries nor any of the officers and directors of it or its subsidiaries
will, and that it will direct and use its best efforts to cause its and its
subsidiaries' employees, agents and representatives (including any investment
banker, attorney or accountant retained by it or any of its subsidiaries) not
to, directly or indirectly, except to the extent legally required for the
discharge by the Board of its fiduciary duties as advised by outside counsel,
engage in any negotiations concerning, or provide any confidential information
or data to, or have any discussions with, any person relating to an
Acquisition Proposal with respect to it or any of its subsidiaries, or
otherwise facilitate any effort or attempt to make or implement an Acquisition
Proposal with respect to it or any of its subsidiaries or any of their
businesses. The Company also agreed that it will immediately cease and cause
to be terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing; it being
understood, however, that resumption of any such activities, discussions or
negotiations shall not violate this provision to the extent legally required
for the discharge by the Board of its fiduciary duties, as advised by outside
counsel. The Company agreed that it will use its reasonable best efforts to
promptly inform the individuals or entities referred to in the first sentence
of this paragraph of such obligations it has undertaken. The Company agreed
that it will notify Praxair immediately if (i) any such inquiries, proposals
or offers are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with it or
its subsidiaries or (ii) the Company determines that it is legally required
for the discharge by the Board of its fiduciary duties as advised by outside
counsel to deliver such information or to enter into such negotiations or
discussions. The Company also agreed that it will promptly request each person
that has executed any confidentiality agreement in connection with the
consideration of an Acquisition Proposal with respect to the Company or any of
its subsidiaries or any of their businesses to return all confidential
information furnished to such person by or on behalf of it or any of its
subsidiaries.
Pursuant to the Merger Agreement and subject to certain terms therein, from
the date of the Merger Agreement until the Effective Time, the Company has
agreed to, upon reasonable notice, to afford Praxair's officers, employees,
counsel, accountants and other representatives access during normal business
hours to its properties, books, contracts and records and, during such period,
will furnish promptly all information concerning its business, properties and
personnel as may be reasonably requested.
Under the Merger Agreement, before issuing any press release or otherwise
making any public announcements with respect to the Merger and other
transactions contemplated by the Merger Agreement, Praxair and the Company
will use reasonable best efforts to consult with each other.
Under the Merger Agreement, from and after the Effective Time, Praxair will
indemnify, defend and hold harmless each present and former officer, director
and employee of the Company, determined as of the Effective Time, against any
costs or expenses, judgments, fines, losses, claims, damages or liabilities
incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or
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investigative, arising out of matters existing or occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after the
Effective Time, to the fullest extent that the Company would have been
permitted under Delaware law and the Restated Company Certificate of
Incorporation or the Company's by-laws to indemnify such Person.
Pursuant to the Merger Agreement, for a period of not less than five years
after the Effective Time, Praxair has agreed that it shall use all reasonable
efforts to maintain the Company's existing directors' and officers' liability
insurance policy and employee benefit fiduciary liability insurance (provided
that Praxair may substitute therefor policies of substantially similar
coverage and amounts containing terms which are no less advantageous);
provided, however, that Praxair is not obligated to make annual premium
payments for such insurance to the extent such premiums exceed 175% of the
premiums paid as of the date of the Merger Agreement by the Company for such
insurance.
Pursuant to the Merger Agreement, Praxair has agreed that, for the period of
one year commencing on the consummation of the Offer, the employees of the
Company and its subsidiaries and former employees of the Company and its
subsidiaries, other than employees covered by collective bargaining
agreements, will continue to be provided with benefits under employee benefit
plans with a value which is not less in the aggregate than that currently
provided by the Company and its subsidiaries to such employees.
Rights Agreement. In the Merger Agreement, the Company has represented that
it will, acting through its Board, take all necessary action prior to the
Expiration Date including, without limitation, supplementing or amending the
Rights Agreement to ensure that, so long as the Merger Agreement has not been
terminated, the Offer is a "Permitted Tender Offer" (as defined in the Rights
Agreement), (it being understood that the Company will amend the definition of
"Permitted Tender Offer" in the Rights Agreement), no "Distribution Date" (as
defined in the Rights Agreement) will occur and Section 11.1(b) of the Rights
Agreement will not be triggered, in each case as a result of the announcement,
commencement or consummation of the Offer or the execution or delivery of the
Merger Agreement with the effect that none of such events will trigger the
exercisability of the Rights or the separation of the Rights from the
certificates to which they are attached. So long as the Merger Agreement has
not been terminated, the Board will take all further action (in addition to
that referred to above) requested in writing by Praxair or Purchaser
(including redeeming the Rights immediately prior to the Effective Time or
amending the Rights Agreement) in order to render the Rights inapplicable to
the Merger and the other transactions contemplated by the Merger Agreement.
Except as provided above with respect to the Merger and the other transactions
by Praxair or Purchaser, the Board has agreed that it will not (i) amend the
Rights Agreement or (ii) take any action with respect to, or make any
determination under, the Rights Agreement, including a redemption of the
Rights or any action to facilitate an Acquisition Proposal, provided, however,
that nothing herein will be deemed to preclude the Company from taking any
action with respect to the Rights Agreement (including any modification or
amendment thereto or waiver thereof) as it applies to any third party other
than Praxair and the Purchaser to the extent required for the Board to comply
with its fiduciary obligations under applicable law, as advised in writing by
outside counsel to the Company.
Representations and Warranties. The Merger Agreement contains certain
representations and warranties by the Company, including representations and
warranties concerning: the organization, good standing and qualification of
the Company and its subsidiaries; the capital structure of the Company; the
corporate authority of the Company relative to the execution and delivery of
and consummation of the transactions contemplated by the Merger Agreement and
approval by the Board regarding certain related matters; the substantial
compliance with all applicable law of all Compensation and Benefit Plans (as
defined in the Merger Agreement); the absence of any violations of the
corporate documents and certain instruments of the Company or its subsidiaries
or of any statute, rule, regulation, order or decree, subject to certain
exceptions; the accuracy of reports and documents filed by the Company with
the Commission since December 31, 1994; the absence since December 31, 1994 to
the date of the Merger Agreement of any event or occurrence which,
individually or in the aggregate, would have a Company Material Adverse Effect
(as defined in the Merger Agreement); and the taking by the Board of
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<PAGE>
all appropriate and necessary action such that the provisions of Section 203
of the Delaware Law will not apply to the transactions contemplated by the
Merger Agreement.
The Merger Agreement also contains certain representations and warranties by
Praxair and the Purchaser, including that prior to the consummation of the
Offer, Praxair will have caused Purchaser to have at the time of acceptance
for payment and purchase of Shares under the Offer and at the Effective Time,
the funds necessary to consummate the Offer and the Merger and the
transactions contemplated thereby and to pay related fees and expenses.
Conditions to the Merger. Under the Merger Agreement, the respective
obligations of Praxair and Purchaser to consummate the Merger are subject to
the fulfillment of each of the following conditions, any or all of which
(other than the Minimum Tender Condition) may be waived in whole or in part by
Praxair or Purchaser, as the case may be, to the extent permitted by
applicable law: (a) the Merger Agreement shall have been duly approved by the
vote of stockholders of the Company necessary to approve the Merger Agreement
and the transactions contemplated by the Merger Agreement, in accordance with
applicable law, the Restated Company Certificate of Incorporation and the by-
laws of the Company; (b) Purchaser shall have purchased Shares pursuant to the
Offer; (c) the waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or been terminated; (d) no United States
or state court or other governmental entity of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and prohibits consummation of the
transactions contemplated by the Merger Agreement (collectively, an "Order");
(e) the Company shall have fulfilled its obligations under the Merger
Agreement in connection with Company Options, Stock Plans and the Rights
Agreement.
Under the Merger Agreement, the obligations of the Company to consummate the
Merger are subject to the fulfillment of each of the same conditions as stated
in the previous paragraph (except for Condition (e)), any or all of which may
be waived in whole or in part by the Company to the extent permitted by
applicable law.
Termination. The Merger Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, before or after the
approval by stockholders of the Company, by the mutual consent of Praxair and
the Company, by action of their respective Boards of Directors.
The Merger Agreement may be terminated and the Merger may be abandoned by
action of the Board of Directors of either Praxair or the Company if (i)
Purchaser shall have terminated the Offer without purchasing any Shares
pursuant thereto; provided, that, in the case of termination of the Merger
Agreement by Praxair, such termination of the Offer is not in violation of the
terms of the Offer or the Merger Agreement or (ii) a majority of the
outstanding Shares shall not have been purchased pursuant to the Offer within
60 business days of the date thereof; provided, further, that the right to
terminate the Merger Agreement pursuant to this paragraph is not available to
any party who at such time is in material breach of its obligations under the
Merger Agreement.
So long as Praxair is not in material breach of any of its obligations under
the Merger Agreement, the Merger Agreement may be terminated and the Merger
may be abandoned at any time prior to the purchase of a majority of the
outstanding Shares pursuant to the Offer, before or after the approval by
stockholders of the Company, by action of the Board of Directors of Praxair,
if (x) the representations and warranties of the Company set forth in the
Merger Agreement shall not be true and correct in any respect as of the
Expiration Date as though made on or as of such date or the Company shall have
breached or failed in any material respect to perform or comply with any
material obligation, agreement or covenant required by the Merger Agreement to
be performed or complied with by it except, in each case, (i) for changes
specifically permitted by the Merger Agreement and (ii) (A) those
representations and warranties that address matters only as of a particular
date which are true and correct as of such date or (B) where the failure of
representations and warranties (without regard to materiality qualifications
therein contained) to be true and correct, or the performance or compliance
with such obligations, agreements or covenants, do not, individually or in the
aggregate, have a Company Material Adverse Effect (as defined in the Merger
Agreement); or (y) the Board shall have withdrawn or
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modified in a manner adverse to Praxair or Purchaser its approval or
recommendation of the Offer, the Merger Agreement or the Merger or the Board,
upon request by Praxair, shall fail to reaffirm such approval or
recommendation within 2 business days of such request, or shall have resolved
to do any of the foregoing.
The Merger Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time by the Board, if (i) Praxair or Purchaser
shall have failed to comply in any material respect with any of the covenants
or agreements contained in the Merger Agreement to be complied with or
performed by Praxair or Purchaser at or prior to such date of termination, or
any representation or warranty made by Praxair in the Merger Agreement shall
be untrue or incorrect in any material respect, (ii) Praxair or Purchaser
shall have failed to amend the Initial Offer (as defined in the Merger
Agreement) within the time required by the Merger Agreement or (iii) the
Company receives an Acquisition Proposal on terms the Board (after
consultation with its financial advisors) determines to be more favorable to
the Company's stockholders than the terms of the Offer and the Merger, and the
Board determines, as advised by outside counsel, that it is legally required
for the discharge of its fiduciary duties, (A) not to continue to recommend
that holders of Shares accept the Offer and tender their Shares pursuant to
the Offer, and (B) to accept such Acquisition Proposal; provided, however,
that the Company shall not be permitted to terminate the Merger Agreement
pursuant to this paragraph unless it has provided Praxair and Purchaser with
two business days' prior written notice of its intent to so terminate the
Merger Agreement together with a detailed summary of the terms and conditions
(including proposed financing, if any) of such Acquisition Proposal; provided,
further, that Purchaser shall receive the termination fee set forth in the
paragraph below immediately prior to any termination as provided in this
paragraph by wire transfer in same day funds.
The Merger Agreement provides that if (x) (i) the Offer shall have remained
open for a minimum of at least 10 business days, (ii) after the date hereof
any corporation, partnership, person, other entity or group (as defined in
Section 13(d)(3) of the Exchange Act) other than Praxair or Purchaser or any
of their respective subsidiaries or affiliates (collectively, an "Acquiring
Person") shall have become the beneficial owner of 10% or more of the
outstanding Shares, and (iii) the Minimum Tender Condition shall not have been
satisfied and the Amended Offer is terminated in accordance with the Merger
Agreement without the purchase of any Shares thereunder, (y) Praxair shall
have terminated the Merger Agreement as provided in clause (y) of the
paragraph that is two paragraphs preceding this paragraph, or (z) the Company
shall have terminated the Merger Agreement as provided in clause (iii) of the
preceding paragraph, then the Company, if requested by Praxair, shall
promptly, but in no event later than two days after the date of such request,
pay Praxair a fee of $43,500,000 which amount shall be payable in same day
funds.
Amendment. Subject to applicable law, the Merger Agreement may be modified
or amended by written agreement of Praxair, the Purchaser and the Company at
any time prior to the Effective Time with respect to any of the terms
contained therein.
8. CERTAIN CONDITIONS TO THE OFFER. Pursuant to the Merger Agreement, the
conditions of the Offer are amended and restated in their entirety as follows:
Notwithstanding any other provision of the Offer and provided that the
Purchaser shall not be obligated to accept for payment any Shares until
expiration or termination of all applicable waiting periods under the HSR Act,
Purchaser shall not be required to accept for payment or pay for, or may delay
the acceptance for payment of or payment for, any tendered Shares, or subject
to the terms of the Merger Agreement may, in its sole discretion, terminate or
amend the Offer as to any Shares not then paid for if:
i. there is not tendered and not withdrawn prior to the Expiration Date
at least that number of Shares that would represent a majority of all
outstanding Shares on a fully diluted basis on the date of purchase. For
purposes of the Offer, "on a fully diluted basis" means, as of any date,
the number of Shares outstanding together with Shares that the Company is
required to issue pursuant to obligations outstanding at that date under
convertible securities, stock options or otherwise;
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ii. Purchaser is not, in its reasonable discretion, satisfied that the
Rights will not become exercisable upon consummation of the Offer;
iii. Purchaser is not satisfied, in its reasonable discretion, that after
consummation of the Offer, the restrictions contained in Section 203 of the
DGCL will not apply to the Merger;
iv. Purchaser is not satisfied, in its reasonable discretion, that no
supermajority vote will be required by Article Tenth or Article Fifteenth
of the Restated Company Certificate of Incorporation to approve the Merger
or that after consummation of the Offer, Purchaser will otherwise possess
sufficient voting power to effect the Merger without the affirmative vote
of any person other than Purchaser; or
v. On or after December 21, 1995 and at or before the time of payment for
any of such Shares any of the following shall occur:
(a) there shall have occurred and be continuing (i) any general
suspension of, or limitation on prices for, trading in securities on
the NYSE or in the over-the-counter market, (ii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in
the United States, (iii) a commencement or escalation of a war, armed
hostilities or other international or national calamity directly or
indirectly involving the United States (other than the current action
in Bosnia), (iv) any limitation (whether or not mandatory) by any
Governmental Entity, on the extension of credit by banks or other
lending institutions, (v) any significant adverse change in interest
rates or major stock indices in the United States or abroad, including,
without limitation, a decline of at least 15% in either the Dow Jones
Average of Industrial Stocks or the Standard & Poor's 500 index from
that existing at the close of business on December 21, 1995, (vi) a
currency moratorium on or a suspension of, the currency exchange
markets in the United States, or (vii) in the case of any of the
foregoing existing at the date hereof, a material acceleration or
worsening thereof;
(b) there shall be instituted or pending any action, litigation,
proceeding, investigation or other application (hereinafter, an
"Action") by any Governmental Entity: (i) challenging the acquisition
by Praxair, Purchaser or any other wholly-owned subsidiary of Praxair
of Shares, seeking to restrain or prohibit the consummation of the
transactions contemplated by the Agreement, the Offer or the Merger,
seeking to obtain any material damages or otherwise directly or
indirectly relating to the transactions contemplated by the Agreement,
the Offer or the Merger or other subsequent business combination; (ii)
seeking to prohibit, or impose any material limitations on, Praxair's,
Purchaser's or any other wholly-owned subsidiary of Praxair's ownership
or operation of all or any portion of their or the Company's business
or assets (including the business or assets of their respective
affiliates and subsidiaries), or to compel Praxair or Purchaser to
dispose of or hold separate all or any portion of Praxair's or
Purchaser's or the Company's business or assets (including the business
or assets of their respective affiliates and subsidiaries) as a result
of the transactions contemplated by the Agreement, the Offer or the
Merger or other subsequent business combination; (iii) seeking to make
the acceptance for payment, purchase of, or payment for, some or all of
the Shares illegal or render Purchaser unable to, or result in a delay
in, or restrict, the ability of Purchaser to accept for payment,
purchase or pay for some or all of the Shares; (iv) seeking to impose
material limitations on the ability of Praxair or Purchaser effectively
to acquire or hold or to exercise full rights of ownership of the
Shares including, without limitation, the right to vote the Shares
purchased by them on an equal basis with all other Shares on all
matters properly presented to the stockholders of the Company; or (v)
that, in any event, in the reasonable judgment of Purchaser, is
reasonably likely to have a Company Material Adverse Effect (other than
litigation disclosed in the Company Disclosure Letter);
(c) any statute, rule, regulation, order, judgment or injunction
shall be enacted or entered with respect to the Offer or the Merger, or
any other action shall have been taken by any court or other
Governmental Entity other than the application to the Offer or the
Merger of waiting periods under the HSR Act that, in the reasonable
judgment of Praxair or Purchaser, might, directly or indirectly,
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reasonably be expected to result in any of the effects of, or have any
of the consequences sought to be obtained or achieved in, any Action
referred to in clauses (i) through (v) of paragraph (b) above;
(d) it shall have been publicly disclosed or Praxair shall have
learned that (i) any person, entity or "group" (as defined in Section
13(d) of the Exchange Act and the rules promulgated thereunder) shall
have become the beneficial owner (as defined in Section 13(d) of the
Exchange Act and the rules promulgated thereunder) of more than ten
percent of the Shares (other than for bona fide arbitrage purposes); or
(ii) any person, entity or group shall have entered into a definitive
agreement or an agreement in principle with the Company with respect to
the acquisition of more than 10% of the Shares or a merger,
consolidation or other business combination with or involving the
Company;
(e) any change shall have occurred or be threatened (or any
development shall have occurred or been threatened involving a
prospective change) in the financial condition, businesses or results
of operations of the Company or any of its subsidiaries that is or is
reasonably likely to be materially adverse to the Company and its
subsidiaries taken as a whole, or Praxair or Purchaser shall have
become aware of any fact (including, but not limited to, any prior
change) that has or is reasonably likely to have a material adverse
effect on the value of the Shares or the Company and its subsidiaries
taken as a whole to Praxair or Purchaser;
(f) Purchaser or Praxair and the Company shall have entered into an
agreement that the Offer be terminated or amended; or
(g) the representations and warranties of the Company set forth in
the Agreement shall not be true and correct in any respect as of the
Expiration Date of the Offer as though made on or as of such date or
the Company shall have breached or failed in any material respect to
perform or comply with any material obligation, agreement or covenant
required by this Agreement to be performed or complied with by it
except, in each case, (i) for changes specifically permitted by this
Agreement and (ii) (A) those representations and warranties that
address matters only as of a particular date which are true and correct
as of such date or (B) where the failure of representations and
warranties (without regard to materiality qualifications therein
contained) to be true and correct, or the performance or compliance
with such obligations, agreements or covenants, do not, individually or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(h) the Board (or a majority of the Disinterested Directors) shall
have amended, modified or withdrawn its recommendation in favor of the
Offer or the Merger, or shall have failed publicly to reconfirm such
recommendation upon request by Praxair or Purchaser, or shall have
endorsed, approved or recommended any other Acquisition Proposal, or
shall have resolved to do any of the foregoing; or
(i) the Agreement shall have been terminated by the Company or
Praxair or Purchaser in accordance with its terms, or Praxair or
Purchaser shall have reached an agreement or understanding in writing
with the Company providing for delay in payment for the Shares;
which, in the reasonable judgment of Purchaser in any such case, and
regardless of the circumstances (including, without limitation, any action
or inaction by Purchaser, Praxair or any other affiliate of Praxair) giving
rise to any such condition, makes it inadvisable to proceed with the Offer
or with acceptance for payment or payment for Shares.
The foregoing conditions are for the sole benefit of Praxair and Purchaser
and their respective affiliates and may be asserted by Praxair and Purchaser
regardless of the circumstances (including, without limitation, any action or
inaction by Praxair, Purchaser or any of their respective affiliates) giving
rise to any such condition other than the Minimum Tender Condition or may be
waived by Praxair or Purchaser in whole or in part at any time and from time
to time in its sole discretion. The failure by Praxair or Purchaser at any
time to exercise any of the foregoing rights will not be deemed a waiver of
any such right, the waiver of any such right with respect to particular facts
and circumstances will not be deemed a waiver with respect to any other facts
and
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circumstances and each such right will be deemed an ongoing right that may be
asserted at any time and from time to time.
A public announcement may be made of a material change in, or waiver of,
such conditions and the Offer may, in certain circumstances, be extended in
connection with any such change or waiver.
The Purchaser acknowledges that the Commission believes that (a) if the
Purchaser is delayed in accepting the Shares it must either extend the Offer
or terminate the Offer and promptly return the Shares and (b) the
circumstances which a delay in payment is permitted are limited and do not
include unsatisfied conditions of the Offer, except with respect to most
required regulatory approvals.
9. SOURCE AND AMOUNT OF FUNDS. The Purchaser estimates that the total amount
of funds required pursuant to the Offer to purchase the number of Shares
outstanding on a fully diluted basis and to pay fees and expenses related to
the Offer will be approximately $1.5 billion. The Purchaser plans to obtain
the necessary funds through capital contributions or advances made by Praxair.
Praxair plans to obtain the necessary funds, together with funds necessary to
refinance any existing borrowings of Praxair and its subsidiaries and the
Company and its subsidiaries that become payable as a result of completion of
the Offer or the Merger, pursuant to borrowings under the Credit Agreement (as
defined below) or other borrowings for such capital contribution.
On December 7, 1995, Praxair entered into a definitive $2,500,000,000 Credit
Agreement (the "Credit Agreement") among Praxair, the banks party thereto,
Morgan Guaranty Trust Company of New York, as Documentation Agent, and
Chemical Bank, as Administrative Agent and Auction Agent. The proceeds of the
loans made under the Credit Agreement will be used by Praxair for the purposes
of financing the Offer and consummating the transactions contemplated thereby
including without limitation financing the Merger, repaying or refinancing
debt of the Company and its Subsidiaries (as defined in the Credit Agreement)
and for working capital and general corporate purposes of Praxair and its
Subsidiaries.
A summary of the Credit Agreement is contained in Amendment No. 11 to
Praxair's and the Purchaser's Schedule 14D-1 filed with the Commission with
respect to the Offer. It does not purport to be complete and is qualified in
its entirety by reference to the Credit Agreement, a copy of which is also
attached as Exhibit (b)(2) to said Amendment.
10. CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS.
Pursuant to the Merger Agreement, Praxair, the Purchaser and the Company
agreed to immediately dismiss, with each party bearing its own costs and
litigation expenses, all proceedings pending between themselves and their
affiliates and to sign and deliver such further papers as may be necessary in
connection with such dismissals.
Antitrust. On November 21, 1995, Praxair announced that it had received a
request for additional information from the FTC pursuant to the HSR Act that
it was in the process of complying with such request, and that the initial 15-
day waiting period under the HSR Act was extended. Praxair has reached a
tentative agreement with the staff of the FTC concerning a settlement and
consent order, which is subject to the approval of the Commissioners of the
FTC.
11. MISCELLANEOUS. Praxair and the Purchaser have filed with the Commission
a Schedule 14D-1 and amendments thereto, together with exhibits, pursuant to
Rule 14d-3 of the General Rules and Regulations under the Exchange Act,
furnishing certain additional information with respect to the Offer, and may
file further amendments thereto. Such Schedule 14D-1 and any amendments
thereto, including exhibits, may be examined and copies may be obtained from
the office of the Commission in the same manner as described in Section 9 of
the Offer to Purchase with respect to information concerning the Company,
except that they will not be available at the regional offices of the
Commission.
Except as otherwise set forth in this Supplement and in the revised Letter
of Transmittal, the terms and conditions previously set forth in the Offer to
Purchase remain applicable in all respects to the Offer, and this Supplement
should be read in conjunction with the Offer to Purchase.
18
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PRAXAIR OR THE PURCHASER NOT CONTAINED IN THE
OFFER TO PURCHASE, AS AMENDED AND SUPPLEMENTED BY THIS SUPPLEMENT, OR IN THE
RELATED REVISED LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, ANY SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. Neither the delivery of this Supplement or the Offer to Purchase
nor any purchase pursuant to the Offer shall, under any circumstances, create
any implication that there has been no change in the affairs of Praxair, the
Purchaser, the Company or any of their respective subsidiaries since the date
as of which information is furnished or the date of this Supplement.
PX ACQUISITION CORP.
December 28, 1995
19
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each holder of Shares or
such stockholder's broker, dealer, commercial bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: Facsimile Transmission: By Hand or Overnight
Courier:
(for Eligible Institutions Only)
Tender & Exchange (212) 815-6213
Department Tender & Exchange
P.O. Box 11248 Department
Church Street Station 101 Barclay Street
New York, NY 10286-1248 Receive and Deliver
Window
For Information Telephone: New York, NY 10286
(800) 507-9357
----------------
Questions and requests for assistance or for additional copies of the Offer
to Purchase, this Supplement, the revised (green) Letter of Transmittal and
the revised (blue) Notice of Guaranteed Delivery may be directed to the
Information Agent or the Dealer Manager at their respective telephone numbers
and locations listed below. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue
20th Floor
New York, NY 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage
Firms please call:
(800) 662-5200
The Dealer Manager for the Offer is:
CS FIRST BOSTON
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
(800) 227-4117
<PAGE>
EXHIBIT 99.(A)(29)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
CBI INDUSTRIES, INC.
Pursuant to the Offer to Purchase Dated November 3, 1995
and the Supplement thereto
Dated December 28, 1995
by
PX ACQUISITION CORP.
a Wholly Owned Subsidiary of
PRAXAIR, INC.
THE EXPIRATION DATE OF THE OFFER HAS BEEN AMENDED SUCH THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON
THURSDAY, JANUARY 11, 1996, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: Facsimile Transmission: By Hand or Overnight
(for Eligible Courier:
Institutions Only)
Tender & Exchange
Department (212) 815-6213 Tender & Exchange
P.O. Box 11248 Department 101 Barclay
Church Street Station Street Receive and
New York, NY 10286-1248 Deliver Window New York,
NY 10286
Confirm by Telephone:
(800) 507-9357
---------------
DELIVERY OF THIS REVISED LETTER OF TRANSMITTAL TO AN ADDRESS, OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH
ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS REVISED LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS REVISED LETTER OF TRANSMITTAL IS COMPLETED.
This revised Letter of Transmittal or the original (yellow) Letter of
Transmittal previously circulated is to be used either if certificates for
Shares (and Rights, if applicable) (as such terms are defined below) are to be
forwarded herewith or therewith or, unless an Agent's Message (as defined
below) is used in lieu of a Letter of Transmittal, if delivery of Shares and
Rights is to be made by book-entry transfer (in the case of Rights, if
available) to an account maintained by the Depositary at a Book-Entry Transfer
Facility as defined in and pursuant to the procedures set forth in Section 2
of the Offer to Purchase dated November 3, 1995 (the "Offer to Purchase").
STOCKHOLDERS WILL BE REQUIRED TO TENDER TWO-THIRDS ( 2/3) OF A RIGHT (SUBJECT
TO ADJUSTMENT) FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF
SHARES UNDER THE OFFER (AS DEFINED HEREIN). ACCORDINGLY, STOCKHOLDERS WHO SELL
THEIR RIGHTS SEPARATELY FROM THEIR SHARES IN THE EVENT OF A DISTRIBUTION DATE
(AS DEFINED IN THE OFFER TO PURCHASE) AND DO NOT OTHERWISE ACQUIRE RIGHTS MAY
NOT BE ABLE TO SATISFY THE REQUIREMENTS OF THE OFFER FOR A VALID TENDER OF
SHARES. UNLESS THE DISTRIBUTION DATE OCCURS, A TENDER OF SHARES WILL ALSO
CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. Stockholders who deliver Shares
and Rights by book-entry transfer are referred to herein as "Book-Entry
Stockholders" and other stockholders are referred to herein as "Certificate
Stockholders." Stockholders who desire to tender Shares and Rights pursuant to
the Offer and whose certificates for Shares (and Rights, if applicable) are
not immediately available (including because certificates for Rights have not
yet been distributed by the Rights Agent (as defined below)), or who cannot
comply with the procedure for book-entry transfer on a timely basis, or who
cannot deliver all required documents to the Depositary prior to the
Expiration Date (as defined in the Supplement dated December 28, 1995 to the
Offer to Purchase (the "Supplement")) may tender such Shares and Rights by
following all of the guaranteed delivery procedures set forth in Section 2 of
the Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO A BOOK-
ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Pursuant to an amendment to the Rights Agreement (as defined below) to be
executed by the Company pursuant to the Merger Agreement (as defined in the
Supplement), so long as the Merger Agreement has not been terminated the
Distribution Date (as defined in the Offer to Purchase) will not occur as a
result of the announcement, commencement or consummation of the Offer or the
execution or delivery of the Merger Agreement. The Rights will continue to be
evidenced by certificates for the Shares and the requirement for a separate
tender of Rights described in the Offer to Purchase will not apply unless a
Distribution Date occurs.
<PAGE>
[_] CHECK HERE IF TENDERED SHARES AND RIGHTS ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-
ENTRY TRANSFER FACILITY MAY DELIVER SHARES AND RIGHTS BY BOOK-ENTRY
TRANSFER):
Name of Tendering Institution: _______________________________________________
Check box of Book-Entry Transfer Facility:
[_] The Depository Trust Company
[_] Midwest Securities Trust Company
[_] Philadelphia Depository Trust Company
Account Number: ______________________________________________________________
Transaction Code Number: _____________________________________________________
[_] CHECK HERE IF TENDERED SHARES AND RIGHTS ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s): ______________________________________________
Date of Execution of Notice of Guaranteed Delivery: __________________________
Name of Institution that Guaranteed Delivery: ________________________________
If delivered by book-entry transfer check box of Book-Entry Transfer
Facility:
[_] The Depository Trust Company
[_] Midwest Securities Trust Company
[_] Philadelphia Depository Trust Company
Account Number: ______________________________________________________________
Transaction Code Number: _____________________________________________________
2
<PAGE>
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) AP-
PEAR(S) SHARES TENDERED
ON CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
TOTAL NUMBER
OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
TOTAL SHARES
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) Need not be completed by Book-Entry Stockholders.
(2) Unless otherwise indicated, it will be assumed that all Shares described
above are being tendered. See Instruction 4.
- --------------------------------------------------------------------------------
DESCRIPTION OF RIGHTS TENDERED(1)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S) RIGHTS TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
TOTAL NUMBER
OF RIGHTS NUMBER
CERTIFICATE REPRESENTED BY OF RIGHTS
NUMBER(S)(2)(3) CERTIFICATE(S)(3) TENDERED(4)
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
----------------- -------------------- ---------------
TOTAL RIGHTS
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Need not be completed if the Distribution Date has not occurred.
(2) If the tendered Rights are represented by separate certificates,
complete using the certificate numbers of such certificates for Rights.
If the tendered Rights are not represented by separate certificates, or
if such certificates have not been distributed, complete using the
certificate numbers of the Shares with respect to which the Rights were
issued. Stockholders tendering Rights that are not represented by
separate certificates should retain a copy of this description in order
to accurately complete the Notice of Guaranteed Delivery if the
Distribution Date occurs.
(3) Need not be completed by Book-Entry Stockholders who are delivering
Rights by book-entry transfer.
(4) Unless otherwise indicated, it will be assumed that all Rights described
above are being tendered. See Instruction 4.
- --------------------------------------------------------------------------------
3
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to PX Acquisition Corp., a Delaware
corporation (the "Purchaser"), which is a wholly owned subsidiary of Praxair,
Inc., a Delaware corporation, the above-described shares of Common Stock, par
value $2.50 per share (the "Shares"), of CBI Industries, Inc., a Delaware
corporation (the "Company"), together with the associated rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of March 4, 1986,
as amended (the "Rights Agreement"), between the Company and First Chicago
Trust Company of New York, as Rights Agent (the "Rights Agent"), upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
November 3, 1995, as amended and supplemented by the Supplement and this
revised Letter of Transmittal (which, together with any amendments or
supplements thereto or hereto, collectively constitute the "Offer"), receipt
of which is hereby acknowledged.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), and subject to, and effective upon, acceptance for payment of, and
payment for, the Shares and Rights tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser all right, title and interest in and to all
the Shares and Rights that are being tendered hereby (and any and all other
Shares, Rights or other securities or rights issued or issuable in respect
thereof on or after November 3, 1995), and irrevocably constitutes and
appoints the Bank of New York (the "Depositary"), the true and lawful agent
and attorney-in-fact of the undersigned, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), to the full extent of the undersigned's rights with respect to such
Shares and Rights (and any such other Shares, Rights or securities or rights),
(a) to deliver certificates for such Shares (and Rights, if applicable) (and
any such other Shares, Rights or securities or rights) or transfer ownership
of such Shares and Rights (and any such other Shares, Rights or securities or
rights) on the account books maintained by a Book-Entry Transfer Facility
together, in any such case, with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Purchaser, (b) to present such
Shares (and Rights, if applicable) (and any such other Shares, Rights or
securities or rights) for transfer on the Company's books and (c) to receive
all benefits and otherwise exercise all rights of beneficial ownership of such
Shares and Rights (and any such other Shares, Rights or securities or rights),
all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the tendered Shares
and Rights (and any and all other Shares, Rights or other securities or rights
issued or issuable in respect of such Shares or Rights on or after November 3,
1995) and, if and when the same are accepted for payment by the Purchaser, the
Purchaser will acquire good title thereto, free and clear of all liens,
restrictions, claims and encumbrances, and the same will not be subject to any
adverse claim. The undersigned will, upon request, execute any additional
documents deemed by the Depositary or the Purchaser to be necessary or
desirable to complete the sale, assignment and transfer of the tendered Shares
and Rights (and any and all other Shares, Rights or other securities or rights
issued or issuable in respect thereof on or after November 3, 1995).
THE UNDERSIGNED UNDERSTANDS THAT STOCKHOLDERS WILL BE REQUIRED TO TENDER
TWO-THIRDS (2/3) OF A RIGHT (SUBJECT TO ADJUSTMENT) FOR EACH SHARE TENDERED
IN ORDER TO EFFECT A VALID TENDER OF SHARES UNDER THE OFFER. ACCORDINGLY,
STOCKHOLDERS WHO SELL THEIR RIGHTS SEPARATELY FROM THEIR SHARES IN THE EVENT
OF A DISTRIBUTION DATE AND DO NOT OTHERWISE ACQUIRE RIGHTS MAY NOT BE ABLE TO
SATISFY THE REQUIREMENTS OF THE OFFER FOR A VALID TENDER OF SHARES. UNLESS THE
DISTRIBUTION DATE OCCURS, A TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF
THE ASSOCIATED RIGHTS. If the Distribution Date occurs and separate
certificates representing the Rights are distributed to holders of Shares
prior to the time a holder's Shares are tendered herewith, certificates
representing a number of Rights equal to two-thirds (2/3) times the number of
Shares being tendered herewith must be delivered to the Depositary, or, if
available, a Book-Entry Confirmation (as defined in the Offer to Purchase)
must be received by the Depositary with respect thereto, in order for such
Shares tendered herewith to be validly tendered. If the Distribution Date
occurs and separate certificates representing the Rights are not distributed
prior to the time Shares are tendered herewith, Rights may be tendered prior
to a stockholder receiving separate certificates for Rights by use of the
guaranteed delivery procedure described in Section 2 of the Offer to Purchase.
A tender of Shares constitutes an agreement by the tendering stockholder to
deliver certificates representing a number of Rights equal to two-thirds (2/3)
times the number of Shares tendered pursuant to the Offer to the
Depositary prior to expiration of the period permitted by such guaranteed
delivery procedure for delivery of certificates for, or a Book-Entry
Confirmation with respect to, Rights (the "Rights Delivery Period"). However,
after expiration of the Rights Delivery Period, the Purchaser may elect to
reject as invalid a tender of Shares with respect to which certificates for,
or a Book-Entry Confirmation with respect to, a number of Rights equal to two-
thirds (2/3) times the number of Shares have not been received by the
Depositary. Nevertheless, the Purchaser will be entitled to accept for payment
Shares tendered by the undersigned prior to receipt of the certificates for
the Rights required to be tendered with such Shares, or a Book-Entry
Confirmation with respect to such Rights, and either (a), subject to complying
with the applicable rules and regulations of the Securities and Exchange
Commission, withhold payment for such Shares pending receipt of the
certificates for, or a Book-Entry
4
<PAGE>
Confirmation with respect to, such Rights or (b) make payment for Shares
accepted for payment pending receipt of the certificates for, or a Book-Entry
Confirmation with respect to, such Rights in reliance upon the agreement of a
tendering stockholder to deliver Rights and such guaranteed delivery
procedures. Any determination by the Purchaser to make payment for Shares in
reliance upon such agreement and such guaranteed delivery procedures or, after
expiration of the Rights Delivery Period, to reject a tender as invalid will
be made in the sole and absolute discretion of the Purchaser.
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable. See
Section 3 of the Offer to Purchase.
The undersigned hereby irrevocably appoints the designees of the Purchaser
the attorneys-in-fact and proxies of the undersigned, each with full power of
substitution, to vote at any annual, special or adjourned meeting of the
Company's stockholders or otherwise in such manner as each such attorney-in-
fact and proxy or his substitute shall in his sole discretion deem proper with
respect to, to execute any written consent concerning any matter as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, and to otherwise act as each such attorney-in-fact and
proxy or his substitute shall in his sole discretion deem proper with respect
to, the Shares and Rights tendered hereby that have been accepted for payment
by the Purchaser prior to the time any such action is taken and with respect
to which the undersigned is entitled to vote (and any and all other Shares,
Rights or other securities or rights issued or issuable in respect of such
Shares and Rights on or after November 3, 1995). This appointment is effective
when, and only to the extent that, the Purchaser accepts for payment such
Shares and Rights as provided in the Offer to Purchase. This power of attorney
and proxy are irrevocable, are granted in consideration of the acceptance for
payment of such Shares and Rights in accordance with the terms of the Offer
and shall be considered coupled with an interest in the Shares and Rights.
Upon such acceptance for payment, all prior powers of attorney, proxies and
consents given by the undersigned with respect to such Shares, Rights or other
securities or rights will, without further action, be revoked and no
subsequent powers of attorney, proxies, consents or revocations may be given
(and, if given, will not be deemed effective) by the undersigned.
The undersigned understands that the valid tender of Shares and Rights
pursuant to any of the procedures described in Section 2 of the Offer to
Purchase, as amended and supplemented by the Supplement and in the
Instructions hereto will constitute a binding agreement between the
undersigned and the Purchaser upon the terms and subject to the conditions of
the Offer. Without limiting the foregoing, if the price to be paid in the
Offer is amended in accordance with the Offer, the price to be paid to the
undersigned will be the amended price notwithstanding the fact that a
different price is stated in this Letter of Transmittal.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificates
for Shares (and Rights, if applicable) not tendered or accepted for payment in
the name(s) of the registered holder(s) appearing under "Description of Shares
Tendered" and "Description of Rights Tendered," respectively. Similarly,
unless otherwise indicated under "Special Delivery Instructions," please mail
the check for the purchase price and/or return any certificates for Shares
(and Rights, if applicable) not tendered or accepted for payment (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under "Description of Shares Tendered" and "Description of
Rights Tendered," respectively. In the event that both the Special Delivery
Instructions and the Special Payment Instructions are completed, please issue
the check for the purchase price and/or return any certificates for Shares
(and Rights, if applicable) not tendered or accepted for payment (and any
accompanying documents, as appropriate) in the name of, and deliver such check
and/or return such certificates (and any accompanying documents, as
appropriate) to, the person or persons so indicated. Unless otherwise
indicated herein under "Special Payment Instructions," please credit any
Shares (and Rights, if applicable) tendered herewith by book-entry transfer
that are not accepted for payment by crediting the account at the Book-Entry
Transfer Facility designated above. The undersigned recognizes that the
Purchaser has no obligation pursuant to the Special Payment Instructions to
transfer any Shares and Rights from the name of the registered holder thereof
if the Purchaser does not accept for payment any of the Shares and Rights so
tendered.
[_] CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of Shares represented by the lost or destroyed certificates: ___________
5
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
(SEE INSTRUCTIONS 5 AND 7)
To be completed ONLY if
certificates for Shares or Rights To be completed ONLY if
not tendered or not accepted for certificates for Shares or Rights
payment and/or the check for the not tendered or not accepted for
purchase price of Shares or payment and/or the check for the
Rights accepted for payment are purchase price of Shares or
to be issued in the name of Rights accepted for payment are
someone other than the to be sent to someone other than
undersigned. the undersigned, or the
undersigned at an address other
than that above.
Issue: [_] Check[_] Certificate(s)
to:
Name _____________________________ Mail: [_] Check[_] Certificate(s)
Please Print to:
Address __________________________ Name _____________________________
---------------------------------- Please Print
(Include Zip Code) Address __________________________
----------------------------------
---------------------------------- (Include Zip Code)
(Employer Identification or
Social Security No.) ----------------------------------
(Employer Identification or
Social Security No.)
6
<PAGE>
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
Signature(s) of Stockholders(s) ____________________________________________
____________________________________________________________________________
Dated: ______ __, 1996
(Must be signed by registered holder(s) as name(s) appear(s) on the
certificate(s) for the Shares or Rights or on a security position listing
or by person(s) authorized to become registered holder(s) by certificate(s)
and documents transmitted herewith. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or
others acting in a fiduciary or representative capacity, please provide the
following information and see Instruction 5.)
Dated: ______ __, 1996
Name(s) ____________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Capacity (Full Title) ______________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No. ________________________________________________
Employer Identification or Social Security Number __________________________
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature _______________________________________________________
Name _______________________________________________________________________
(PLEASE PRINT)
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No. ________________________________________________
Dated: ______ __, 1996
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facilities' systems whose name
appears on a security position listing as the owner of the Shares) of Shares
and Rights tendered herewith and such registered holder(s) has completed
neither the box entitled "Special Payment Instructions" nor the box entitled
"Special Delivery Instructions" on their Letter of Transmittal or (b) if such
Shares and Rights are tendered for the account of a financial institution
(including most commercial banks, savings and loan associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each an "Eligible Institution"). In all
other cases, all signatures on this Letter of Transmittal must be guaranteed
by an Eligible Institution. See Instruction 5.
2. REQUIREMENTS OF TENDER. This revised Letter of Transmittal or the
original (yellow) Letter of Transmittal is to be completed by a tendering
stockholder either if certificates for Shares (and Rights, if applicable) are
to be forwarded herewith or therewith or, unless an Agent's Message (as
defined below) is used in lieu of a Letter of Transmittal, if delivery of
Shares and Rights is to be made by book-entry transfer (in the case of Rights,
if available) to an account maintained by the Depositary at a Book-Entry
Transfer Facility pursuant to the procedures set forth in Section 2 of the
Offer to Purchase. For a stockholder validly to tender Shares and Rights
pursuant to the Offer, either (a) a properly completed and duly executed
Letter of Transmittal (or a manually executed facsimile thereof) in accordance
with these Instructions, with any required signature guarantees, or, in the
case of a book-entry transfer, an Agent's Message in lieu of a Letter of
Transmittal, and any other required documents, must be received by the
Depositary at one of its addresses set forth herein prior to the Expiration
Date and either certificates for tendered Shares (and Rights, if applicable)
must be received by the Depositary at one of such addresses or such Shares and
Rights must be delivered pursuant to the procedures for book-entry transfer
set forth herein (and a Book-Entry Confirmation, in the case of Rights, if
available, received by the Depositary), in each case prior to the Expiration
Date, or (b) the tendering stockholder must comply with the guaranteed
delivery procedures set forth below and in Section 2 of the Offer to Purchase.
The Offer is not being made for (nor will any tenders be accepted of) the
Convertible Preferred Shares (as defined in the Offer to Purchase). Holders of
the Convertible Preferred Shares who wish to participate in the Offer must
first convert their Convertible Preferred Shares into Shares in accordance
with the terms of such Convertible Preferred Shares.
Pursuant to an amendment to the Rights Agreement to be executed by the
Company pursuant to the Merger Agreement, so long as the Merger Agreement has
not been terminated the Distribution Date will not occur as a result of the
announcement, commencement or consummation of the Offer or the execution or
delivery of the Merger Agreement. The Rights will continue to be evidenced by
certificates for the Shares and the requirement for a separate tender of
Rights described in the Offer to Purchase will not apply unless a Distribution
Date occurs.
STOCKHOLDERS WILL BE REQUIRED TO TENDER TWO-THIRDS (2/3) OF A RIGHT
(SUBJECT TO ADJUSTMENT) FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID
TENDER OF SHARES. ACCORDINGLY, STOCKHOLDERS WHO SELL THEIR RIGHTS SEPARATELY
FROM THEIR SHARES IN THE EVENT OF A DISTRIBUTION DATE AND DO NOT OTHERWISE
ACQUIRE RIGHTS MAY NOT BE ABLE TO SATISFY THE REQUIREMENTS OF THE OFFER FOR A
VALID TENDER OF SHARES. UNLESS THE DISTRIBUTION DATE OCCURS, A TENDER OF
SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS.
Until the close of business on the Distribution Date, the Rights will be
transferred with and only with the certificates for Shares and the surrender
for transfer of any certificates for Shares will also constitute the transfer
of the Rights associated with the Shares represented by such certificate. If
the Distribution Date occurs and separate certificates representing the Rights
are distributed to holders of Shares prior to the time Shares are tendered
herewith, certificates representing a number of Rights equal to two-thirds (2/3)
of the number of Shares being tendered herewith must be delivered to the
Depositary, or, if available, a Book-Entry Confirmation must be received by
the Depositary with respect thereto, in order for such Shares tendered
herewith to be validly tendered. If the Distribution Date occurs and separate
certificates representing the Rights are not distributed prior to the time
Shares are tendered herewith, Rights may be tendered prior to a stockholder
receiving the certificates for Rights by use of the guaranteed delivery
procedure described below.
A stockholder who desires to tender Shares and Rights pursuant to the Offer
and whose certificates for Shares (and Rights, if applicable) are not
immediately available (including because certificates for Rights have not yet
been distributed by the Rights Agent) or who cannot comply with the procedure
for book-entry transfer on a timely basis, or who cannot deliver all required
documents to the Depositary prior to the Expiration Date, may tender such
Shares and Rights by properly completing and duly executing the Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedure set forth in
Section 2 of the Offer to Purchase. Pursuant to such procedure, (a) such
tender must be made by or through an Eligible Institution (as defined in the
Offer to Purchase), (b) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by the Purchaser, must
be received by the Depositary, as provided below, prior to the Expiration Date
and (c) the certificates for all tendered Shares (and Rights, if applicable),
in proper form for transfer (or a Book-Entry Confirmation, in the case of the
Rights, if available, with respect to all such Shares (and Rights, if
applicable)) together with a properly completed and duly executed Letter of
Transmittal (or a manually executed facsimile thereof) with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message in lieu of a Letter of Transmittal), and any other required documents,
are received by the Depositary within (i), in the case of Shares, three
trading days after the date of execution of such Notice of Guaranteed Delivery
or (ii), in the case of Rights, a period ending on the later of (1) three
trading days after the date of execution of such Notice of Guaranteed Delivery
or (2) three business days (as defined in the Offer
8
<PAGE>
to Purchase) after the date certificates for Rights are distributed to
stockholders by the Rights Agent. A "trading day" is any day on which the New
York Stock Exchange, Inc. is open for business. Stockholders may not extend
the foregoing time period for delivery of Rights to the Depositary by
providing a second Notice of Guaranteed Delivery with respect to such Rights.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgement from the participant in such Book-
Entry Transfer Facility tendering the Shares that such participant has
received and agrees to be bound by the terms of the Letter of Transmittal and
that the Purchaser may enforce such agreement against the participant.
The signatures on this Letter of Transmittal cover the Shares and the Rights
tendered hereby whether or not such Rights are delivered simultaneously with
such Shares.
THE METHOD OF DELIVERY OF SHARES, RIGHTS, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES AND
RIGHTS WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution
of this Letter of Transmittal (or a manually executed facsimile thereof),
waive any right to receive any notice of the acceptance of their Shares and
Rights, for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares (and Rights, if applicable)
should be listed on a separate schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE STOCKHOLDERS ONLY). If fewer
than all the Shares and/or Rights evidenced by any certificate submitted are
to be tendered, fill in the number of Shares and/or Rights that are to be
tendered in the box entitled "Number of Shares Tendered" or "Number of Rights
Tendered," as appropriate. In any such case, new certificate(s) for the
remainder of the Shares and/or Rights that were evidenced by the old
certificate(s) will be sent to the registered holder, unless otherwise
provided in the appropriate box on this Letter of Transmittal, as soon as
practicable after the acceptance for payment of, and payment for, the Shares
and Rights tendered herewith. All Shares and/or Rights represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Shares
and Rights tendered hereby, the signature must correspond with the name as
written on the face of the certificate(s) without any change whatsoever.
If any of the Shares and Rights tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares and Rights are registered in different names on
several certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and proper evidence satisfactory
to the Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares and Rights listed and transmitted hereby, no endorsements of
certificates or separate stock powers are required unless payment or
certificates for Shares (and Rights, if applicable) not tendered or accepted
for payment are to be issued to a person other than the registered owner(s).
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the certificates listed, the certificates must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered owner or owners appear on the
certificates. Signatures on such certificates or stock powers must be
guaranteed by an Eligible Institution.
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares and Rights to it or its order
pursuant to the Offer. If, however, payment of the purchase price is to be
made to, or if certificates for Shares (and Rights, if applicable) not
tendered or accepted for payment are to be registered in the name of, any
person(s) other than the registered holder(s), or if tendered certificates are
registered in the name(s) of any person(s) other than the person(s) signing
this Letter of Transmittal, the amount of any stock transfer taxes (whether
imposed on the registered holder(s) or such person(s)) payable on account of
the transfer to such person(s) will be deducted from the purchase price unless
satisfactory evidence of the payment of such taxes or exemption therefrom is
submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
9
<PAGE>
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares (and Rights, if applicable) not
accepted for payment are to be returned to, a person other than the signer of
this Letter of Transmittal or if a check is to be sent and/or such
certificates are to be returned to a person other than the signer of this
Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
8. WAIVER OF CONDITIONS. The Purchaser reserves the absolute right in its
sole discretion to waive any of the specified conditions of the Offer (other
than the Minimum Tender Condition (as defined in the Offer to Purchase)), in
whole or in part, in the case of any Shares and Rights tendered.
9. 31% BACKUP WITHHOLDING. In order to avoid "backup withholding" of Federal
income tax on payments of cash pursuant to the Offer, a stockholder
surrendering Shares in the Offer must, unless an exemption applies, provide
the Depositary with such stockholder's correct taxpayer identification number
("TIN") on Substitute Form W-9 in this Letter of Transmittal and certify under
penalties of perjury that such TIN is correct and that such stockholder is not
subject to backup withholding. If a stockholder does not provide such
stockholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a penalty on such
stockholder and payment of cash to such stockholder pursuant to the Offer may
be subject to backup withholding of 31%.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the Federal income tax
liability of the person subject to the backup withholding, provided that the
required information is given to the IRS. If backup withholding results in an
overpayment of tax, a refund can be obtained by the stockholder upon filing an
income tax return.
The stockholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN
is provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
Certain stockholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance or additional copies of the Offer to Purchase, the Supplement, the
Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 may
be directed to the Information Agent or the Dealer Manager at their respective
addresses set forth below.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Shares or Rights has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares or Rights lost. The stockholder will then be instructed as to the steps
that must be taken in order to replace the certificate. This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost or destroyed certificates have been followed.
IMPORTANT: THIS REVISED LETTER OF TRANSMITTAL OR AN ORIGINAL (YELLOW) LETTER
OF TRANSMITTAL (OR MANUALLY EXECUTED FACSIMILE THEREOF), TOGETHER WITH ANY
REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE IN LIEU OF A LETTER OF TRANSMITTAL, AND ANY OTHER REQUIRED
DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND
EITHER CERTIFICATES FOR TENDERED SHARES (AND RIGHTS, IF APPLICABLE) MUST BE
RECEIVED BY THE DEPOSITARY OR SHARES AND RIGHTS MUST BE DELIVERED PURSUANT TO
THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR
GUARANTEED DELIVERY.
10
<PAGE>
PAYER'S NAME: PX ACQUISITION CORP.
----------------------------
PART 1--PLEASE PROVIDE YOUR Social security number
TIN IN THE BOX AT RIGHT AND or
CERTIFY BY SIGNING AND
DATING BELOW ----------------------------
SUBSTITUTE Employer identification
number
FORM W-9 -------------------------------------------------------------
DEPARTMENT OF PART 2--Certificates--Under penalties of perjury, I certify
THE TREASURY that:
INTERNAL
REVENUE SERVICE (1) The number shown on this form is my correct Taxpayer
Identification Number (or I am waiting for a number to
be issued to me); and
PAYER'S REQUEST
FOR (2) I am not subject to backup withholding because (a) I am
TAXPAYER exempt from backup withholding or (b) I have not been
IDENTIFICATION notified by the Internal Revenue Service ("IRS") that I
NUMBER (TIN) am subject to backup withholding as a result of a
failure to report all interest or dividends or (c) the
IRS has notified me that I am no longer subject to
backup withholding.
-------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross
out item (2) in Part 2 above if you have PART 3
been notified by the IRS that you are
subject to backup withholding because of AWAITING TIN [_]
underreporting of interest or dividends on
your tax returns. However, if after being
notified by the IRS that you were subject ---------------
to backup withholding you received another PART 4
notification from the IRS stating that you EXEMPT TIN [_]
are no longer subject to backup
withholding, do not cross out item(2). If
you are exempt from backup withholding,
check the box in Part 4 hereof.
-------------------------------------------------------------
SIGNATURE________________________________DATE ______ __, 1996
-------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I
understand that, if I do not provide a taxpayer identification number to
the Depositary, 31% of all reportable payments made to me will be withheld,
but will be refunded if I provide a certified taxpayer identification
number within 60 days.
------------------------------------- -------------------------------------
SIGNATURE DATE
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT
IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO
THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL INFORMATION.
11
<PAGE>
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue 20th Floor
New York, NY 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms please call: (800) 662-5200
The Dealer Manager for the Offer is:
CS FIRST BOSTON
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
(800) 227-4117
December 28, 1995
12
<PAGE>
EXHIBIT 99.(A)(30)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
CBI INDUSTRIES, INC.
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer
(as defined below) if certificates for shares of Common Stock, par value $2.50
per share (the "Shares"), of CBI Industries, Inc., a Delaware corporation (the
"Company"), and, if applicable, certificates of any associated rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of March 4, 1986,
as amended, between the Company and First Chicago Trust Company of New York, as
Rights Agent (the "Rights Agent"), are not immediately available (including
because certificates for Rights have not yet been distributed by the Rights
Agent or if the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date (as defined below)). This form may be
delivered by hand to the Depositary or transmitted by telegram, facsimile
transmission or mail to the Depositary and must include a guarantee by an
Eligible Institution (as defined below) in the form set forth herein. See
Section 2 of the Offer to Purchase.
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: Facsimile Transmission: By Hand or Overnight
(for Eligible Courier:
Institutions Only)
Tender & Exchange Department (212) 815-6213 Tender & Exchange Department
P.O. Box 11248 101 Barclay Street
Church Street Station Receive and Deliver Window
New York, NY 10286-1248 New York, NY 10286
Confirm by Telephone:
(800) 507-9357
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to PX Acquisition Corp., a Delaware
corporation (the "Purchaser"), which is a wholly owned subsidiary of Praxair,
Inc., a Delaware corporation, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated November 3, 1995 (the "Offer to
Purchase"), as amended and supplemented by a Supplement thereto dated December
28, 1995 (the "Supplement") and the related revised (green) Letter of
Transmittal, receipt of which is hereby acknowledged, the number of Shares and
Rights set forth below, all pursuant to the guaranteed delivery procedures set
forth in the Section 2 of the Offer to Purchase.
Number of Shares:____________________ Area Code and Tel. No.:______________
Name(s) of Record Holder(s):_________
(Check one box if Shares or Rights
- ------------------------------------- will be tendered by book-entry
transfer)
- ------------------------------------- [_] The Depository Trust Company
PLEASE PRINT [_] Midwest Securities Trust Company
[_] Philadelphia Depository Trust
Number of Rights:____________________ Company
Certificate Nos. (if available):_____ Signature(s):________________________
- ------------------------------------- -------------------------------------
Address(es):_________________________ Account Number:______________________
- ------------------------------------- -------------------------------------
ZIP CODE
Dated:_______________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agent's Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (an "Eligible Institution"), hereby
guarantees to deliver to the Depositary either the certificates representing
the Shares (and Rights, if applicable) tendered hereby, in proper form for
transfer, or a Book-Entry Confirmation with respect to such Shares (and Rights,
if available and if applicable), together with a properly completed and duly
executed Letter of Transmittal (or manually executed facsimile thereof), with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message in lieu of a Letter of Transmittal), and any other required
documents (a), in the case of Shares, within three trading days after the date
hereof and (b), in the case of Rights, within a period ending on the later of
(i) three trading days after the date hereof or (ii) three business days after
the date certificates for Rights are distributed to stockholders by the Rights
Agent.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares (and Rights, if applicable) to the Depositary within
the time period shown herein. Failure to do so could result in a financial loss
to such Eligible Institution. All terms used herein have the meaning set forth
in the Offer to Purchase.
- ------------------------------------- -------------------------------------
NAME OF FIRM AUTHORIZED SIGNATURE
- ------------------------------------- -------------------------------------
ADDRESS TITLE
- ------------------------------------- Name:________________________________
ZIP CODE PLEASE PRINT
Area Code and Tel. No.:______________ Date:__________________________, 1996
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR RIGHTS WITH THIS NOTICE.
CERTIFICATES FOR SHARES (AND RIGHTS, IF APPLICABLE) SHOULD BE SENT WITH
YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
EXHIBIT 99.(A)(31)
LOGO CS First Boston
CS First Boston
Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York
10055
Tel: (212) 909-2000
PX ACQUISITION CORP.
a Wholly Owned Subsidiary of
PRAXAIR, INC.
Has Increased the Price of its Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Rights)
of
CBI INDUSTRIES, INC.
to
$33.00 NET PER SHARE
THE EXPIRATION DATE OF THE OFFER HAS BEEN AMENDED SUCH THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON THURSDAY, JANUARY 11, 1996,
UNLESS THE OFFER IS EXTENDED.
December 28, 1995
To Brokers, Dealers, Banks,
Trust Companies and other Nominees:
We have been engaged by PX Acquisition Corp., a Delaware corporation (the
"Purchaser"), which is a wholly owned subsidiary of Praxair, Inc., a Delaware
corporation ("Praxair"), to act as Dealer Manager in connection with the Offer
to Purchase dated November 3, 1995 (the "Offer to Purchase"), as amended and
supplemented by the Supplement thereto dated December 28, 1995 (the
"Supplement"), for cash all outstanding shares of Common Stock, par value $2.50
per share (the "Shares"), of CBI Industries, Inc., a Delaware corporation (the
"Company"), together with the associated rights (the "Rights") issued pursuant
to the Rights Agreement, dated as of March 4, 1986, as amended (the "Rights
Agreement"), between the Company and First Chicago Trust Company of New York,
as Rights Agent, upon the terms and subject to the conditions set forth in the
Offer to Purchase, the Supplement and the related revised (green) Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Please furnish copies of the enclosed
materials to those of your clients for whom you hold Shares registered in your
name or in the name of your nominee.
Pursuant to an amendment to the Rights Agreement to be executed by the
Company pursuant to the Merger Agreement (as defined in the Supplement), so
long as the Merger Agreement has not been terminated the Distribution Date (as
defined in the Offer to Purchase) will not occur as a result of the
announcement, commencement or consummation of the Offer or the execution or
delivery of the Merger Agreement. The Rights will continue to be evidenced by
certificates for the Shares and the requirement for a separate tender of Rights
described in the Offer to Purchase will not apply unless a Distribution Date
occurs.
<PAGE>
Stockholders will be required to tender two-thirds ( 2/3) of a Right (subject
to adjustment) for each Share tendered in order to effect a valid tender of
Shares under the Offer. Accordingly, stockholders who sell their Rights
separately from their Shares in the event of a Distribution Date and do not
otherwise acquire Rights may not be able to satisfy the requirements of the
Offer for a valid tender of Shares. Unless the Distribution Date occurs, a
tender of Shares will also constitute a tender of the associated Rights.
Tendering stockholders may continue to use the original (yellow) Letter of
Transmittal and the original (gray) Notice of Guaranteed Delivery previously
circulated with the Offer to Purchase, or may use the revised (green) Letter of
Transmittal and the revised (blue) Notice of Guaranteed Delivery circulated
with the Supplement. While the original (yellow) Letter of Transmittal
previously circulated with the Offer to Purchase refers only to the Offer to
Purchase, stockholders using such document to tender their Shares and Rights
will nevertheless be deemed to be tendering pursuant to the amended Offer
(including the amendments and supplements made by the Supplement) and will
receive $33.00 for each Share (and associated Right) validly tendered and not
properly withdrawn and if Shares are accepted for payment and paid for by the
Purchaser pursuant to the Offer.
Enclosed herewith are copies of the following documents:
1. The Supplement dated December 28, 1995;
2. The revised (green) Letter of Transmittal to be used by stockholders
of the Company in accepting the Offer;
3. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with
space provided for obtaining such clients' instructions with regard to the
Offer;
4. The revised (blue) Notice of Guaranteed Delivery;
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
6. Return envelope addressed to The Bank of New York, the Depositary.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE AT LEAST THAT NUMBER OF
SHARES THAT WOULD REPRESENT A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE. THE OFFER IS NO LONGER SUBJECT TO THE
FINANCING CONDITION (AS DEFINED IN THE OFFER TO PURCHASE).
We urge you to contact your clients promptly. Please note that the Offer and
withdrawal rights will expire at 12:00 midnight, New York City time, on
Thursday, January 11, 1996, unless the Offer is extended by the Purchaser.
Neither the Purchaser nor Praxair will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager and the
Information Agent as described in the Offer to Purchase) in connection with the
solicitation of tenders of Shares and Rights pursuant to the Offer. You will be
reimbursed upon request for customary mailing and handling expenses incurred by
you in forwarding the enclosed offering materials to your customers.
2
<PAGE>
Additional copies of the enclosed material may be obtained by contacting the
Information Agent or the Dealer Manager at their respective addresses and
telephone numbers set forth on the back cover of the enclosed Supplement.
Very truly yours,
CS FIRST BOSTON CORPORATION
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR ANY
OTHER PERSON THE AGENT OF THE PURCHASER, PRAXAIR, THE DEPOSITARY, THE
INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER PERSON TO
GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH
RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE, THE SUPPLEMENT OR
THE LETTER OF TRANSMITTAL.
3
<PAGE>
EXHIBIT 99.(A)(32)
PX ACQUISITION CORP.
a Wholly Owned Subsidiary of
PRAXAIR, INC.
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
of
CBI INDUSTRIES, INC.
to
$33.00 NET PER SHARE
THE EXPIRATION DATE OF THE OFFER HAS BEEN AMENDED SUCH THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON THURSDAY, JANUARY 11, 1996,
UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are a Supplement dated December 28, 1995 (the
"Supplement") to the Offer to Purchase dated November 3, 1995 (the "Offer to
Purchase") and the related revised (green) Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute
the "Offer") relating to the Offer by PX Acquisition Corp., a Delaware
corporation (the "Purchaser"), which is a wholly owned subsidiary of Praxair,
Inc., a Delaware corporation ("Praxair"), to purchase for cash all outstanding
shares of Common Stock, par value $2.50 per share (the "Shares"), of CBI
Industries, Inc., a Delaware corporation (the "Company"), together with the
associated rights (the "Rights") issued pursuant to the Rights Agreement, dated
as of March 4, 1986, as amended (the "Rights Agreement"), between the Company
and First Chicago Trust Company of New York, as Rights Agent. PURSUANT TO AN
AMENDMENT TO THE RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY PURSUANT TO THE
MERGER AGREEMENT (AS DEFINED IN THE SUPPLEMENT), SO LONG AS THE MERGER
AGREEMENT HAS NOT BEEN TERMINATED THE DISTRIBUTION DATE (AS DEFINED IN THE
OFFER TO PURCHASE) WILL NOT OCCUR AS A RESULT OF THE ANNOUNCEMENT, COMMENCEMENT
OR CONSUMMATION OF THE OFFER OR THE EXECUTION OR DELIVERY OF THE MERGER
AGREEMENT. THE RIGHTS WILL CONTINUE TO BE EVIDENCED BY CERTIFICATES FOR THE
SHARES AND THE REQUIREMENT FOR A SEPARATE TENDER OF RIGHTS DESCRIBED IN THE
OFFER TO PURCHASE WILL NOT APPLY UNLESS A DISTRIBUTION DATE OCCURS.
STOCKHOLDERS WILL BE REQUIRED TO TENDER TWO-THIRDS ( 2/3) OF A RIGHT (SUBJECT
TO ADJUSTMENT) FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF
SHARES UNDER THE OFFER. ACCORDINGLY, STOCKHOLDERS WHO SELL THEIR RIGHTS
SEPARATELY FROM THEIR SHARES IN THE EVENT OF A DISTRIBUTION DATE AND DO NOT
OTHERWISE ACQUIRE RIGHTS MAY NOT BE ABLE TO SATISFY THE REQUIREMENTS OF THE
OFFER FOR A VALID TENDER OF SHARES. UNLESS THE DISTRIBUTION DATE OCCURS, A
TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS.
We are the holder of record of Shares held by us for your account. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE REVISED (GREEN) LETTER OF TRANSMITTAL IS FURNISHED TO
YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD
BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to tender any or all of the
Shares and Rights held by us for your account, pursuant to the terms and
conditions set forth in the Offer.
<PAGE>
Your attention is directed to the following:
1. The tender offer price is $33.00 per Share (and associated Right), net
to the seller in cash, without interest thereon, upon the terms and subject
to the conditions of the Offer.
2. The Offer is being made for all of the outstanding Shares and Rights.
3. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON THURSDAY, JANUARY 11, 1996, UNLESS THE OFFER IS EXTENDED
BY THE PURCHASER.
4. The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the Expiration Date at least that
number of Shares that would represent a majority of all outstanding Shares
on a fully diluted basis on the date of purchase. See the Introduction and
Section 8 of the Supplement.
5. Any stock transfer taxes applicable to a sale of Shares and Rights to
the Purchaser will be borne by the Purchaser, except as otherwise provided
in Instruction 6 of the Letter of Transmittal.
Your instruction to us should be forwarded promptly to permit us to submit a
tender on your behalf prior to the expiration of the Offer.
If you wish to have us tender any of or all of your Shares and Rights held by
us for your account, please so instruct us by completing, executing, detaching
and returning to us the instruction form on the detachable part hereof. An
envelope to return your instructions to us is enclosed. If you authorize the
tender of your Shares and Rights, all such Shares and Rights will be tendered
unless otherwise specified on the detachable part hereof. Your instructions
should be forwarded to us in ample time to permit us to submit a tender on your
behalf prior to the expiration of the Offer.
In all cases, payment for Shares and Rights accepted for payment pursuant to
the Offer will be made only after timely receipt by The Bank of New York (the
"Depositary"), of (a) certificates for (or a timely Book-Entry Confirmation (as
defined in the Offer to Purchase) with respect to) such Shares and, if the
Distribution Date occurs, certificates for (or a timely Book-Entry
Confirmation, if available, with respect to) the associated Rights (unless the
Purchaser elects to make payment for such Shares and Rights, pending receipt of
the certificates for, or a Book-Entry Confirmation with respect to, such Rights
as described in Section 2 of the Offer to Purchase), (b) either the original
(yellow) or the revised (green) Letter of Transmittal (or a manually executed
facsimile thereof), properly completed and duly executed, with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message in lieu of a Letter of Transmittal) and (c) any other documents
required by the Letter of Transmittal. Accordingly, tendering stockholders may
be paid at different times depending upon when certificates for Shares (and
Rights, if applicable) or Book-Entry Confirmations with respect to Shares (and
Rights, if applicable and if available) are actually received by the
Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE
OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The Offer is not being made to, nor will tenders be accepted from, or on
behalf of, holders of Shares and Rights in any jurisdiction in which the making
or acceptance of the Offer would not be in compliance with the laws of such
jurisdiction.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
CBI INDUSTRIES, INC.
The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase
of PX Acquisition Corp., a Delaware corporation, dated November 3, 1995 (the
"Offer to Purchase"), as amended and supplemented by the Supplement thereto
dated December 28, 1995 (the "Supplement") and the related revised (green)
Letter of Transmittal relating to shares of Common Stock, par value $2.50 per
share (the "Shares"), of CBI Industries, Inc., a Delaware corporation (the
"Company"), including the associated rights (the "Rights").
This will instruct you to tender the number of Shares and Rights indicated
below held by you for the account of the undersigned, on the terms and subject
to the conditions set forth in such Offer to Purchase, Supplement and Letter of
Transmittal.
Number of Shares Number of Rights
to be Tendered* to be Tendered*
_____ Shares _____ Rights
SIGN HERE
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
SIGNATURE(S) (PLEASE PRINT NAME(S) AND
ADDRESS(ES))
- -------------------------------------
-------------------------------------
- -------------------------------------
(Area Code(s) and Telephone -------------------------------------
Number(s))
Dated: _____ __, 1996 (Tax Identification or Social
Security Number(s))
- --------
* STOCKHOLDERS WILL BE REQUIRED TO TENDER TWO-THIRDS (2/3) OF A RIGHT FOR EACH
SHARE TENDERED TO EFFECT A VALID TENDER OF SHARES. UNLESS THE DISTRIBUTION
DATE (AS DEFINED IN THE OFFER TO PURCHASE) OCCURS, A TENDER OF SHARES WILL
ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. Unless otherwise
indicated, it will be assumed that all your Shares and Rights are to be
tendered.
3
<PAGE>
EXHIBIT 99.(a)(33)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares or Rights. The Offer is made solely by the Offer to Purchase
dated November 3, 1995, the Supplement thereto dated December 28, 1995, and the
related revised (green) Letter of Transmittal, and is not being made to (nor
will tenders be accepted from or on behalf of) holders of Shares or Rights in
any jurisdiction in which the making of the Offer or the acceptance thereof
would not be in compliance with the laws of such jurisdiction. In any
jurisdictions where securities, blue sky or other laws require the Offer to be
made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of the Purchaser by CS First Boston Corporation ("CS First Boston") or
one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
PX Acquisition Corp.
a Wholly Owned Subsidiary of
Praxair, Inc.
Has Increased the Price of its Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Rights)
of
CBI Industries, Inc.
to
$33.00 Net Per Share
PX Acquisition Corp., a Delaware corporation (the "Purchaser"), which is a
wholly owned subsidiary of Praxair, lnc., a Delaware corporation ("Praxair"), is
now offering to purchase all outstanding shares of Common Stock, par value $2.50
per share (the "Shares"), of CBI Industries, Inc., a Delaware corporation (the
"Company"), together with the associated rights (the "Rights") issued pursuant
to the Rights Agreement, dated as of March 4, 1986, as amended (the "Rights
Agreement"), between the Company and First Chicago Trust Company of New York, as
Rights Agent (the "Rights Agent"), at a price of $33.00 per Share (and
associated Right), net to the seller in cash, without interest thereon (the
"Offer Price"), upon the terms and subject to the conditions set forth in the
Offer to Purchase dated November 3, 1995 (the "Offer to Purchase"), as amended
and supplemented by the Supplement thereto dated December 28, 1995 (the
"Supplement"), and in the related revised (green) Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"). All references herein to "Rights" shall include all benefits that may
inure to holders of the Rights pursuant to the Rights Agreement and, unless the
context otherwise requires, all references herein to "Shares" shall include the
associated Rights. Stockholders will be required to tender two-thirds (2/3) of a
Right (subject to adjustment) for each Share tendered in order to effect a valid
tender of Shares in accordance with the procedures set forth in Section 2 of the
Offer to Purchase. Accordingly, stockholders who sell their Rights separately
from their Shares in the event of a Distribution Date (as defined in the Offer
to Purchase) and do not otherwise acquire Rights may not be able to satisfy the
requirements of the Offer for a valid tender of Shares. Unless the Distribution
Date occurs, a tender of Shares will also constitute a tender of the associated
Rights.
THE EXPIRATION DATE OF THE OFFER HAS BEEN AMENDED SUCH THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON THURSDAY, JANUARY 11, 1996, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, there being validly tendered
and not withdrawn prior to the Expiration Date (as defined below) at least that
number of Shares that would represent a majority of all outstanding Shares on a
fully diluted basis on the date of purchase. See Introduction and Section 8 of
the Supplement. The Offer is no longer subject to the Financing Condition (as
defined in the Offer to Purchase).
The Company, the Purchaser and Praxair have entered into an Agreement and Plan
of Merger, dated as of December 22, 1995 (the "Merger Agreement"), which
provides for, among other things, (i) an increase in the price per Share to be
paid pursuant to the Offer from $32.00 per Share to $33.00 per Share, net to the
seller in cash, (ii) the amendment and restatement of the conditions to the
Offer as set forth in their entirety in Section 8 of the Supplement, (iii) the
amendment to the Offer such that the Offer and withdrawal rights will expire at
12:00 midnight, New York City time, on Thursday, January 11, 1996 and (iv) the
merger of the Purchaser with and into the Company (the "Merger") as promptly as
is practicable following the consummation of the Offer. In the Merger, each
Share issued and outstanding immediately prior to the Merger (other than any
Shares held by Praxair, the Purchaser, any subsidiary of Praxair or the
Purchaser, in the treasury of the Company, or by any subsidiary of the Company
and other than any Dissenting Shares (as such term is defined in the Merger
Agreement)) shall be converted into the right to receive $33.00 in cash, payable
to the holder thereof, without interest thereon, upon surrender of the
certificate formerly representing such Share.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT EACH OF
THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY, HAS APPROVED THE MERGER AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING THE OFFER AND THE MERGER, AND
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT
TO THE OFFER.
Shares previously validly tendered and not withdrawn constitute valid tenders
for purposes of the Offer. Stockholders are not required to take any further
action with respect to such Shares in order to receive the increased Offer price
of $33.00 per Share, if Shares are accepted for payment and paid for by the
Purchaser pursuant to the Offer, except as may be required by the guaranteed
delivery procedure if such procedure was utilized.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to the Purchaser and
not withdrawn as, if and when the Purchaser gives oral or written notice to The
Bank of New York (the "Depositary") of the Purchaser's acceptance for payment of
such Shares. Payment for Shares accepted for payment pursuant to the Offer will
be made by deposit of the purchase price therefor with the Depositary, which
will act as agent for tendering stockholders for the purpose of receiving
payment from the Purchaser and transmitting payment to tendering stockholders.
Under no circumstances will interest be paid on the purchase price of the Shares
to be paid by the Purchaser, regardless of any extension of the Offer or any
delay in making such payment.
In all cases, payment for Shares accepted for payment pursuant to the Offer will
be made only after timely receipt by the Depositary of (a) certificates for (or
a timely Book-Entry Confirmation (as defined in the Offer to Purchase) with
respect to) such Shares and, if the Distribution Date occurs, certificates for
(or a timely Book-Entry Confirmation, if available, with respect to) the
associated Rights (unless the Purchaser elects to make payment for such Shares
pending receipt of the certificates for, or a Book-Entry Confirmation, if
available, with respect to, such Rights as described in Section 2 of the Offer
to Purchase), (b) either an original (yellow) or a revised (green) Letter of
Transmittal (or a manually executed facsimile thereof), properly completed and
duly executed, with any required signature guarantees (or, in the case of a
book-entry transfer, an Agent's Message (as defined in the Offer to Purchase) in
lieu of a Letter of Transmittal) and (c) any other documents required by the
Letter of Transmittal. The per Share consideration paid to any stockholder
pursuant to the Offer will be the highest per Share consideration paid to any
other stockholder pursuant to the Offer.
Except as otherwise provided in Section 3 of the Offer to Purchase, tenders of
Shares and Rights are irrevocable. Shares and Rights tendered pursuant to the
Offer may be withdrawn pursuant to the procedures set forth in the Offer to
Purchase at any time prior to the Expiration Date and, unless theretofore
accepted for payment and paid for by the Purchaser pursuant to the Offer, may
also be withdrawn at any time after Monday, February 26, 1996. Shares or Rights
may not be withdrawn unless the associated Rights or Shares, as the case may be,
are also withdrawn. A withdrawal of Shares or Rights will also constitute a
withdrawal of the associated Rights or Shares, as the case may be.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of the Offer to Purchase and
must specify the name of the person having tendered the Shares and the Rights to
be withdrawn, the number of Shares and Rights to be withdrawn and the name of
the registered holder of the Shares and the Rights to be withdrawn, if different
from the name of the person who tendered the Shares and the Rights. If
certificates for Shares or Rights have been delivered or otherwise identified to
the Depositary, then, prior to the physical release of such certificates, the
serial numbers shown on such certificates must be submitted to the Depositary
and, unless such Shares or Rights have been tendered by an Eligible Institution
(as defined in the Offer to Purchase), the signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution. If Shares or Rights
have been delivered pursuant to the procedures for book-entry transfer as set
forth in Section 2 of the Offer to Purchase, any notice of withdrawal must also
specify the name and number of the account at the appropriate Book-Entry
Transfer Facility (as defined in the Offer to Purchase) to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's
procedures. Withdrawals of tenders of Shares and Rights may not be rescinded,
and any Shares and Rights properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn Shares and Rights
may be retendered by again following one of the procedures described in Section
2 of the Offer to Purchase at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of notices
of withdrawal will be determined by the Purchaser in its sole discretion, which
determination will be final and binding. None of the Purchaser, Praxair, the
Depositary, the Information Agent, the Dealer Manager or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give such
notification.
Subject to the applicable rules and regulations of the Securities and Exchange
Commission, the Purchaser reserves the right, subject to the terms of the Merger
Agreement, at any time or from time to time, to extend the period of time during
which the Offer is open, and thereby delay acceptance for payment of and the
payment for any Shares, if at the Expiration Date the conditions to the Offer
specified in Section 8 of the Supplement have not been satisfied or waived by
the Purchaser, by giving oral or written notice of such extension to the
Depositary. Any such extension will be followed as promptly as practicable by
public announcement thereof, and such announcement will be made not later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. The term "Expiration Date" means 12:00 midnight, New
York City time, on Thursday, January 11, 1996, unless and until the Purchaser,
in its sole discretion, shall have extended the period of time during which the
Offer is open, in which event the term "Expiration Date" shall mean the latest
time and date at which the Offer, as so extended by the Purchaser, will expire.
The information required to be disclosed by paragraph (e)(l)(vii) of Rule 14d-6
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is
contained in the Offer to Purchase, as amended and supplemented by the
Supplement, and is incorporated herein by reference.
The Company is providing the Purchaser with the Company's stockholder lists and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Supplement, the related revised (green) Letter of Transmittal and
the other relevant materials will be mailed to record holders of Shares, and
will be furnished to brokers, dealers, banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the stockholder
lists, or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares, by the Purchaser following receipt of such lists or listings from the
Company.
The Offer to Purchase, the Supplement and the revised (green) Letter of
Transmittal contain important information that should be read before any
decision is made with respect to the Offer.
Questions and requests for assistance or for additional copies of the Offer to
Purchase, the Supplement, the revised (green) Letter of Transmittal, the revised
(blue) Notice of Guaranteed Delivery or other Offer documents may be directed to
the Information Agent or the Dealer Manager at their respective telephone
numbers and addresses listed below. Holders of Shares may also contact brokers,
dealers, commercial banks and trust companies or other nominees for assistance
concerning the Offer. Copies of the foregoing will be furnished at the
Purchaser's expense. No fees or commissions will be payable to brokers, dealers
or other persons other than the Dealer Manager and the Information Agent for
soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue, 20th Floor
New York, New York 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms please call:
(800) 662-5200
The Dealer Manager for the Offer is:
CS First Boston
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Toll Free Telephone: (800) 227-4117
December 28, 1995
<PAGE>
EXHIBIT 99.(a)(34)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.--
Social Security numbers have nine digits separated by two hyphens: i.e. 000-00-
0000. Employer identification numbers have nine digits separated by only one
hyphen: i.e. 00-0000000. The table below will help determine the number to give
the payer.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- --------------------------------------------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or,
if combined funds, any one of the
individuals(1)
3. Husband and wife (joint account) The actual owner of the account or,
if joint funds, either person(1)
4. Custodian account of a minor (Uniform The minor(2)
Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the
only contributor, the minor(1)
6. Account in the name of guardian or The ward, minor, or incompetent
committee for a designated ward, minor, person(3)
or incompetent person
7. a. The usual revocable savings trust The grantor-trustee(1)
account (grantor is also trustee)
b. So-called trust account that is not The actual owner(1)
a legal or valid trust under State
law
8. Sole proprietorship account The owner(4)
<CAPTION>
GIVE THE EMPLOYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- --------------------------------------------------------------------------------
<S> <C>
9. A valid trust, estate, or pension trust The legal entity (Do not furnish
the identifying number of the
personal representative or trustee
unless the legal entity itself is
not designated in the account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or educational The organization
organization account
12. Partnership account held in the name The partnership
of the business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker or nominee
15. Account will the Department of Agri- The public entity
culture in the name of a public entity
(such as a State or local government,
school district, or prison) that
receives agricultural program payments
</TABLE>
- --------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Card, or Form SS-4,
Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
. An international organization or any agency, or instrumentality thereof.
. A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An exempt charitable remainder trust, or a nonexempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of 1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (include exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under the section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1984, payers must generally
withhold 20% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES.
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
