As Filed with the Securities and Exchange
Commission on December 18, 1996
Registration No. 33-48479
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 2
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Praxair, Inc.
(Exact name of registrant as specified in its charter)
Delaware 06-124-9050
(State of incorporation) (IRS Employer Identification No.)
39 Old Ridgebury Road, Danbury, CT 06810-5113
(Address of principal executive offices)
1992 Praxair, Inc. Long Term Incentive Plan
1996 Praxair, Inc. Senior Executive Performance Award Plan
1996 Praxair, Inc. Performance Incentive Plan
(full title of the plan)
David H. Chaifetz
Vice President, General Counsel and Secretary
Praxair, Inc.
39 Old Ridgebury Road Danbury, CT 06810-5113
(Name and address of agent for service)
(203) 837-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered Common Stock $0.01 par value(1)
Amount to be registered N/A
Proposed maximum offering price per share(2) N/A
Proposed maximum aggregate offering price(2) N/A
Amount of registration fee N/A
(1) Also includes the Common Stock Purchase Rights associated
therewith.
Exhibit Index is located on page 5
(PAGE 2)
This Form S-8 amends that registration statement on Form S-8
filed on June 16, 1992 (Registration No. 48479) including
Post-Effective Amendment No. 1 thereto filed on April 18, 1996
(Registration No. 48479) relating to the 1992 Praxair, Inc. Long
Term Incentive Plan ("LTIP") and the 1996 Praxair, Inc. Senior
Executive Performance Award Plan.
The purpose of the present filing is to amend the title of the
Plan under which registered securities are to be issued to
include the 1996 Praxair, Inc. Performance Incentive Plan. No
additional securities are being registered in conjunction with
this amendment.
The following represents information required in this
registration statement that is not contained in the earlier
registration statements.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing information required by the
Securities and Exchange Commission as set forth in Part I of
Form S-8 will be sent or given to participants in the 1996
Praxair, Inc. Performance Incentive Plan (the "Plan") which Plan
is listed on the cover of this registration statement (the
"Registration Statement"), as specified in Rule 428(b)(1)
promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"). Such
document(s) are not being filed with the Commission but
constitute (along with the documents incorporated by reference
into the Registration Statement pursuant to Item 3 of Part II
hereof), a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Registration Statement on Form S-8 (Registration No. 48479)
filed with the Commission on June 16, 1992 and Post-Effective
Amendment No. 1 thereto (Registration No. 48479) filed with the
Commission on April 18, 1996.
ITEM 8. EXHIBITS
4.5 1996 Praxair, Inc. Performance Incentive Plan
5.1 Opinion of Counsel - Kelley Drye & Warren LLP
23.1 Consent of Independent Accountants - Price Waterhouse LLP
23.2 Consent of Independent Accountants - Arthur Andersen LLP
23.3 Consent of Counsel - Kelley Drye & Warren LLP (contained
in Exhibit 5.1)
24.1 Powers of Attorney (included in the signature page hereof)
(PAGE3)
ITEM 9. UNDERTAKINGS
Notwithstanding the foregoing subparagraph (1)(ii) of this Item
9, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933 as amended, Praxair, Inc. certifies that it has
reasonable grounds to believe that it meets all the requirements
for filing on Form S-8 and has duly caused this post effective
amendment to a registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Danbury, State of Connecticut, on the 10th day of December, 1996.
PRAXAIR, INC.
By: /s/ J. Robert Vipond
J. Robert Vipond
Vice President and Controller
(On behalf of the Registrant and as
Principal Accounting Officer)
(PAGE4)
Each person whose signature appears below appoints each
of John A. Clerico and David H. Chaifetz, his attorney-in-fact
and agent, with full power of substitution and resubstitutution,
to sign and file with the Securities and Exchange Commission any
amendments to the Registration Statement (including
post-effective amendments), any registration statement permitted
under Rule 462 (b) under the Securities Act of 1933 and any
amendments thereto and to file with the Securities and Exchange
Commission one or more supplements to any prospectus included in
any of the foregoing, and generally to do anything else
necessary or proper in connection therewith.
Pursuant to the requirements of the Securities Act of 1933 as
amended, this registration statement has been signed by the
following persons in the capacities indicated on December 13,
1996.
/s/ John A. Clerico /s/ Alejandro Achaval /s/ Ronald L. Kuehn, Jr.
John A. Clerico Alejandro Achaval Ronald L. Kuehn, Jr.
Vice President, Chief Director Director
Financial Officer and Director
(Principal Financial Officer)
/s/ Edgar G. Hotard /s/ John J. Creedon /s/ Benjamin F. Payton
Edgar G. Hotard John J. Creedon Benjamin F. Payton
President and Director Director Director
/s/ C. Fred Fetterolf /s/ G. Jackson Ratcliffe, Jr.
C. Fred Fetterolf G. Jackson Ratcliffe, Jr.
Director Director
/s/ H. Mitchell Watson, Jr. /s/ Claire W. Gargalli H.
Mitchell Watson, Jr. Claire W. Gargalli Dale F. Frey
Director Director Director
/s/ H. William Lichtenberger
H. William Lichtenberger
Chairman and Chief Executive Officer
(Principal Executive Officer)
(PAGE5)
EXHIBIT INDEX
EXHIBIT SEQUENTIAL PAGE NO.
4.5 1996 Praxair, Inc. Performance 6
Incentive Plan
5.1 Opinion of Counsel - Kelley Drye & 21
Warren LLP
23.1 Consent of Independent Accountants - 23
Price Waterhouse LLP
23.2 Consent of Independent Accountants - 24
Arthur Andersen LLP
23.3 Consent of Counsel - Kelley Drye & Contained in Exhibit 5.1
Warren LLP
24.1 Powers of Attorney Included on signature
page hereof
(PAGE6)
EXHIBIT 4.5
1996 PRAXAIR, INC.
PERFORMANCE INCENTIVE PLAN
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1993
Adopted by the Board of Directors: October 22, 1996
(PAGE7)
1996 PRAXAIR, INC.
PERFORMANCE INCENTIVE PLAN
Section 1: Purpose. The purpose of the 1996 Praxair, Inc.
Performance Incentive Plan (hereinafter referred to as the
"Plan") is to (a) provide incentives and rewards to those
eligible employees who are in a position to contribute to the
long-term growth and profitability of the Corporation; (b)
assist the Corporation and its subsidiaries and affiliates in
attracting, retaining, and motivating employees with experience
and ability; and (c) make the Corporation's compensation program
competitive with those of other major employers.
Section 2: Administration. The Plan shall be administered by
the Compensation and Management Development Committee of the
Board of Directors (hereinafter referred to as the "Committee").
The Committee shall interpret the Plan, establish administrative
regulations to further the purpose of the Plan, authorize awards
to eligible participants and take any other action necessary for
the proper operation of the Plan. All decisions and acts of the
Committee shall be final and binding upon all participants. The
Committee shall set the option price, the number of options to
be awarded and the number of shares to be awarded out of the
total number of shares available for award, and shall have the
authority to delegate to the Chief Executive Officer of the
Corporation the right to allocate awards, such delegation to be
subject to such terms and conditions as the Committee in its
discretion shall determine.
Section 3: Participation. This Plan is for Praxair, Inc. and
its subsidiaries and affiliates. Any Employee of Praxair, Inc.
or a subsidiary or affiliate who is recommended to, and
authorized by, the Committee shall be eligible to participate in
the Plan; provided, however, that the following Employees shall
not be eligible to participate in this Plan: (i) Employees who
are officers or directors within the meaning of the Exchange
Act; (ii) Employees subject to Section 16 of the Exchange Act;
and (iii) Employees subject to Section 162(m) of the Code.
Section 4: Awards. Awards under this Plan may be stock option
awards, stock appreciation rights, exercise payment rights,
grants of stock, or performance awards. The total number of
shares of stock (including Restricted Stock, if any) available
for options or grants under this Plan in each calendar year
during the term of this Plan shall be two percent (2%) of the
total number of shares of common stock outstanding as of the
first day of such year (including treasury shares) plus any
shares reserved for a prior year but not granted or optioned, up
to a maximum of four percent (4%) of the total number of the
Corporation's common shares outstanding as of the first day of
the year of the grant. Solely for the purpose of computing the
total number of shares of stock optioned or granted under this
Plan, there shall not be counted any shares which have been
forfeited and any shares covered by an option which, prior to
such computation, has terminated in accordance with its terms or
has been cancelled by the Participant or the Corporation. In
the event of any change in the outstanding shares of the
Corporation by reason of any stock split, stock dividend,
recapitalization, merger, consolidation, combination or exchange
(PAGE8)
of shares or other similar corporate change or in the event of
any special distribution to the stockholders, the Committee
shall make such equitable adjustments including, but not limited
to, adjustments in the number of shares and prices per share
applicable to options then outstanding and in the number of
shares which are available thereafter for Stock Option Awards or
other awards, both under the Plan as a whole and with respect to
individuals, as the Committee determines are necessary and
appropriate. Any such adjustment shall be conclusive and
binding for all purposes of the Plan.
Section 5: Stock Options.
5.1: The Corporation may award options to purchase common
stock or Restricted Stock of the Corporation (hereinafter
referred to as "Stock Option Awards") to such eligible Employees
as the Committee, or the Chief Executive Officer of the
Corporation, if the Committee in its discretion delegates the
right to allocate awards pursuant to Section 2, authorizes and
under such terms as the Committee establishes. The Committee
shall determine with respect to each Stock Option Award whether
a participant is to receive an Incentive Stock Option or a
Non-Qualified Stock Option.
5.2: To the extent any option is an Incentive Stock Option,
the option price of each share of stock subject to such Stock
Option Award shall be the closing price of the common stock of
the Corporation on the date the award is authorized as reported
in the New York Stock Exchange-Composite Transactions.
5.3: A stock option by its terms shall not be transferable by
the participant other than by will or the laws of descent and
distribution, shall be of no more than 10 years' duration, and
shall be exercisable only after the earliest of: (i) such period
as the Committee shall determine but in no event less than one
year following the date of grant of such award; (ii) the
participant's death; (iii), if the Committee so determines, the
participant's Retirement; (iv) or a Change in Control of the
Corporation.
An option is only exercisable by a participant while the
participant is in active employment with the Corporation except
(i) in the case of a participant's death, Disability or
Retirement, (ii) during a three-year period commencing on the
date of a participant's termination of employment by the
Corporation other than for cause, (iii) during a three-year
period commencing on the date of termination, by the participant
or the Corporation, of employment after a Change in Control of
the Corporation, unless such termination of employment is for
cause, or (iv) if the Committee decides that it is in the best
interest of the Corporation to permit exceptions. An option may
not be exercised pursuant to this paragraph after the expiration
date of the option. For individuals employed by a subsidiary of
the Corporation, such individuals shall be deemed to have
terminated employment for purposes of this Section 5 at such
time as the Corporation owns, either directly or indirectly,
less than 50% of the total combined voting power of all classes
of stock entitled to vote.
(PAGE9)
5.4: An option may be exercised with respect to part or all of
the shares subject to the option by giving written notice to the
Corporation of the exercise of the option. The option price for
the shares for which an option is exercised shall be paid in
cash, in whole shares of common stock of the Corporation owned
by the participant prior to exercising the option, or in a
combination of cash and such shares of common stock or the
participant may elect to satisfy such option price payment
obligation by having the Corporation withhold shares that
otherwise would be delivered pursuant to the option exercise.
The value of any share of common stock delivered or withheld in
payment of the option price shall be the Market Price on the
date the option is exercised.
5.5: In order to enable the Corporation to meet any applicable
federal, state or local withholding tax requirements arising as
a result of the exercise of a stock option, a participant shall
pay the Corporation the amount of tax to be withheld or may
elect to satisfy such obligation by having the Corporation
withhold shares that otherwise would be delivered to the
participant pursuant to the exercise of the option for which the
tax is being withheld, by delivering to the Corporation other
shares of common stock of the Corporation owned by the
participant prior to exercising the option, or by making a
payment to the Corporation consisting of a combination of cash
and such shares of common stock. Such an election shall be made
prior to the date to be used to determine the tax to be
withheld. The value of any share of common stock to be withheld
by the Corporation or delivered to the Corporation pursuant to
this Section 5.5 shall be the Market Price on the date to be
used to determine the amount of tax to be withheld.
5.6: The Committee may, in its discretion, grant to holders of
stock options the right to receive with respect to each share
covered by an option payments of amounts equal to the regular
cash dividends paid to holders of the Corporation's common stock
during the period that the option is outstanding (such payments
are hereinafter referred to as "Dividend Payments").
5.7: The aggregate fair market value of all shares of stock
with respect to which Incentive Stock Options are exercisable
for the first time by a participant in any one calendar year,
under this Plan or any other stock option plan maintained by the
Corporation (or by any subsidiary or parent of the Corporation),
shall not exceed $100,000. The fair market value of such shares
of stock shall be the mean of the high and low prices of the
common stock of the Corporation as reported in the New York
Stock Exchange-Composite Transactions on the date the related
stock option is granted (or on the next preceding day such stock
was traded on a stock exchange included in the New York Stock
Exchange-Composite Transactions if it was not traded on any such
exchange on the date the related stock option is granted).
Section 6: Stock Appreciation Rights.
6.1: The Committee may, in its discretion, grant stock
appreciation rights to Employees who have received a Stock
Option Award. The stock appreciation rights may relate to such
number of shares, not exceeding the number of shares that the
Employee may acquire upon exercise of a related stock option, as
the Committee determines in its discretion. Upon exercise of a
(PAGE10)
stock option by an Employee, the stock appreciation rights
relating to the shares covered by such exercise shall terminate.
Upon termination or expiration of a stock option, any
unexercised stock appreciation rights related to that option
shall also terminate. Upon exercise of stock appreciation
rights, such rights and the related option to the extent of an
equal number of shares shall terminate.
6.2: The Committee at its discretion may revoke at any time
any unexercised stock appreciation rights granted to an Employee
under this Plan, without compensation to such Employee.
Revocation of an Employee's stock appreciation rights under this
section shall not affect any related stock options granted to
the Employee under this Plan.
6.3: Upon an Employee's exercise of some or all of the
Employee's stock appreciation rights, the Employee shall receive
an amount equal to the value of the Stock Appreciation for the
number of rights exercised, payable in cash, common stock,
Restricted Stock, or a combination thereof, at the discretion of
the Committee.
6.4: The Committee shall have the discretion either to
determine the form in which payment of a stock appreciation
right will be made, or to consent to or disapprove the election
of the Employee to receive cash in full or partial settlement of
the right. Such consent or disapproval may be given at any time
before or after the election to which it relates.
Notwithstanding the foregoing provision, if an Employee
exercises a stock appreciation right during the 60-day period
commencing on the date of a Change in Control of the
Corporation, the form of payment of such stock appreciation
right shall be cash provided that such stock appreciation right
was granted at least six months prior to the date of exercise,
and shall be common stock if such stock appreciation right was
granted six months or less prior to the date of exercise.
6.5: Settlement for exercised stock appreciation rights may be
deferred by the Committee in its discretion to such date and
under such terms and conditions as the Committee may determine.
6.6: A stock appreciation right is only exercisable during the
period when the stock option to which it is related is also
exercisable.
Section 7: Exercise Payments.
7.1: The Committee may, in its discretion, grant to holders of
stock options the right to receive Exercise Payments relating to
such number of shares covered by the holder's stock options as
the Committee determines in its discretion. Exercise Payments
shall be reduced by the total amount which may have been
received as Dividend Payments pursuant to Section 5.6 with
respect to the stock option that is being exercised.
7.2: At the discretion of the Committee, the Exercise Payment
may be made in cash, common stock, Restricted Stock, or a
combination thereof. Exercise Payments shall be paid within 20
business days following the exercise of a related stock option;
provided, however, that payment may be deferred by the Committee
in its discretion to such date and under such terms and
conditions as the Committee may determine.
7.3: Exercise Payments shall be paid only upon the exercise of
related stock options which are exercised by the holder while an
active Employee; provided, however, that in the case of an
option holder's death or Retirement, Exercise Payments will be
paid if such related stock options are exercised within nine
months after death or three months after Retirement, as the case
may be, but before the expiration of the stock option's term.
(PAGE11)
Section 8: Grants of Stock.
8.1: The Committee may grant, either alone or in addition to
other awards granted under the Plan, shares of stock or
Restricted Stock to such eligible Employees as the Committee, or
the Chief Executive Officer of the Corporation, if the Committee
in its discretion delegates the right to allocate awards
pursuant to Section 2, authorizes and under such terms as the
Committee establishes. The Committee, in its discretion, may
also make a cash payment to a participant granted shares of
stock or Restricted Stock under the Plan to allow such
Participant to satisfy tax obligations arising out of receipt of
the stock or Restricted Stock.
8.2: The participant shall have, with respect to Restricted
Stock, all of the rights of a stockholder of the Corporation,
including the right to vote the shares and the right to receive
any dividends, unless the Committee shall otherwise determine.
8.3: Restricted Stock may not be sold or transferred by the
participant until any restrictions that have been established by
the Committee have lapsed.
8.4: Upon a participant's termination of employment during the
period any restrictions are in effect, all Restricted Stock
shall be forfeited without compensation to the participant
unless the Committee decides that it is in the best interest of
the Corporation to permit an exception with respect to such
participant.
8.5 In order to enable the Corporation to meet any applicable
federal, state or local withholding tax requirements arising as
a result of the vesting of a Restricted Stock, a participant
shall pay the Corporation the amount of tax to be withheld or
may elect to satisfy such obligation by having the Corporation
withhold shares that otherwise would be delivered to the
participant pursuant to the vesting of Restricted Stock for
which the tax is being withheld, by delivering to the
Corporation other shares of common stock of the Corporation
owned by the participant prior to the vesting of Restricted
Stock, or by making a payment to the Corporation consisting of a
combination of cash and such shares of common stock. Such an
election shall be made prior to the date to be used to determine
the tax to be withheld. The value of any share of common stock
to be withheld by the Corporation or delivered to the
Corporation pursuant to this Section 8.5 shall be the Market
Price on the date to be used to determine the amount of tax to
be withheld.
Section 9: Performance Awards.
9.1: The Committee may grant, either alone or in addition to
other awards granted under the Plan, awards of stock and other
awards that are valued in whole or in part by reference to, or
are otherwise based on, the market value of the common stock,
Restricted Stock or other securities of the Corporation
("Performance Awards") to such eligible Employees as the
Committee, or the Chief Executive Officer of the Corporation, if
the Committee in its discretion delegates the right to allocate
awards pursuant to Section 2, authorizes and under such terms as
the Committee establishes. Performance Awards may be paid in
common stock, Restricted Stock or other securities of the
Corporation, cash or any other form of property as the Committee
shall determine. Performance Awards shall entitle the
participant to receive an award if the measures of performance
established by the Committee are met. The measures of
performance shall be established by the Committee in its
absolute discretion.
9.2: The Committee shall determine the times at which
Performance Awards are to be made and all conditions of such
awards.
9.3: The participant shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber shares received pursuant
to this Section 9 prior to the date on which any applicable
restriction or performance period established by the Committee
lapses.
(PAGE12)
9.4: In order to enable the Corporation to meet any applicable
federal, state or local withholding tax requirements arising as
a result of the vesting or payment of Performance Awards, a
participant shall pay the Corporation the amount of tax to be
withheld or may elect to satisfy such obligation by having the
Corporation withhold shares that otherwise would be delivered to
the participant pursuant to the vesting or payment of
Performance Awards for which the tax is being withheld, by
delivering to the Corporation other shares of common stock of
the Corporation owned by the participant prior to the vesting or
payment of Performance Awards, or by making a payment to the
Corporation consisting of a combination of cash and such shares
of common stock. Such an election shall be made prior to the
date to be used to determine the tax to be withheld. The value
of any share of common stock to be withheld by the Corporation
or delivered to the Corporation pursuant to this Section 9.4
shall be the Market Price on the date to be used to determine
the amount of tax to be withheld.
Section 10: General Provisions.
10.1: Any assignment or transfer of any awards without the
written consent of the Corporation shall be null and void.
10.2: Nothing contained herein shall require the Corporation to
segregate any monies from its general funds, or to create any
trusts, or to make any special deposits for any immediate or
deferred amounts payable to any participant for any year.
10.3: Participation in this Plan shall not affect the
Corporation's right to discharge a participating Employee.
10.4: This Plan shall be interpreted in accordance with, and
the enforcement of this Plan shall be governed by, the laws of
the State of Connecticut.
10.5: (a) If the Committee shall at any time determine that
any Consent (as hereinafter defined) is necessary or desirable
as a condition of, or in connection with, the granting of any
award under the Plan, the issuance or purchase of shares or
other rights thereunder, or the taking of any other action
thereunder (each such action being hereinafter referred to as a
"Plan Action"), then such Plan Action shall not be taken, in
whole or in part, unless and until such Consent shall have been
effected or obtained to the full satisfaction of the Committee.
(b) The term "Consent" as used herein with respect to
any Plan Action means (i) any and all listings, registrations or
qualifications in respect thereof upon any securities exchange
or under any federal, state or local law, rule or regulation,
(ii) any and all written agreements and representations by the
grantee with respect to the disposition of shares, or with
respect to any other matter, which the Committee shall deem
necessary or desirable to comply with the terms of any such
listing, registration or qualification or to obtain an exemption
from the requirement that any such listing, qualification or
registration be made, and (iii) any and all consents, clearances
and approvals in respect of a Plan Action by any governmental or
other regulatory bodies.
Section 11: Definitions.
11.1: A 'Change in Control of the Corporation' shall be deemed
to occur in the event that any of the following circumstances
have occurred:
(i) individuals who, on October 22, 1996,
constitute the Board (the "Incumbent Directors") cease for any
reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to October 22,
1996, whose election or nomination for election was approved by
a vote of at least two-thirds of the Incumbent Directors then on
the Board (either by a specific vote or by approval of the proxy
statement of the Corporation in which such person is named as a
nominee for director, without objection to such nomination)
shall be an Incumbent Director; provided, however, that no
individual elected or nominated as a director of the Corporation
initially as a result of an actual or threatened election
contest with respect to directors or any other actual or
threatened solicitation of proxies [or consents] by or on behalf
of any person other than the Board shall be deemed an Incumbent
Director;
(PAGE13)
(ii) any "person" (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the
"Exchange Act") and as used in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act) is or becomes a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Corporation representing 20% or more of the
combined voting power of the Corporation's then outstanding
securities eligible to vote for the election of the Board (the
"Company Voting Securities"); provided, however, that the event
described in this paragraph (ii) shall not be deemed to be a
Change in Control by virtue of any of the following
acquisitions: (A) by the Corporation or any Subsidiary, (B) by
any employee benefit plan sponsored or maintained by the
Corporation or Subsidiary, (C) by any underwriter temporarily
holding securities pursuant to an offering of such securities,
(D) pursuant to a Non-Qualifying Transaction (as defined in
paragraph (iii)), or (E) pursuant to any acquisition by
Executive or any group of persons including Executive (or any
entity controlled by Executive or any group of persons including
Executive);
(iii) the consummation of a merger,
consolidation, share exchange or similar form of corporate
transaction involving the Corporation or any of its Subsidiaries
that requires the approval of the Corporation's stockholders,
whether for such transaction or the issuance of securities in
the transaction (a "Business Combination"), unless immediately
following such Business Combination: (A) more than 50% of the
total voting power of (x) the corporation resulting from such
Business Combination (the "Surviving Corporation"), or (y), if
applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the voting
securities eligible to elect directors of the Surviving
Corporation (the "Parent Corporation"), is represented by
Company Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, shares
into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power
among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting Securities
among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan
sponsored or maintained by the Surviving Corporation or the
Parent Corporation), is or becomes the beneficial owner,
directly or indirectly, of 20% or more of the total voting power
of the outstanding voting securities eligible to elect directors
of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a
majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) were Incumbent Directors at the time of
the Board's approval of the execution of the initial agreement
providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in
(A), (B) and (C) above shall be deemed to be a "Non-Qualifying
Transaction"); or
(PAGE14)
(iv) The stockholders of the Corporation
approve a plan of complete liquidation or dissolution of the
Corporation or a sale of all or substantially all of the
Corporation's assets.
Notwithstanding the foregoing, a Change in Control of the
Corporation shall not be deemed to occur solely because any
person acquires beneficial ownership of more than 20% of the
Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Corporation which reduces the
number of Company Voting Securities outstanding; provided, that
if after such acquisition by the Corporation such person becomes
the beneficial owner of additional Company Voting Securities
that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in
Control of the Corporation shall then occur.
11.2: "Code" means the Internal Revenue Code of 1986, as now
or hereafter amended.
11.3: "Corporation" means Praxair, Inc.
11.4: "Disability" means a participant's inability to engage
in any substantial gainful activity because of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted, or can be expected to
last, for a continuous period of six (6) months or longer.
11.5: "Employee" means any employee of the Corporation or of a
subsidiary or affiliate of the Corporation participating in the
Plan.
11.6: "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
11.7: "Exercise Payment" is a payment upon the exercise of a
stock option of an amount determined by the Committee in its
discretion.
11.8: "Incentive Stock Option" means any stock option granted
pursuant to this Plan which is designated as such by the
Committee and which complies with Section 422 of the Code.
11.9: "Market Price" is the mean of the high and low prices of
the common stock of the Corporation as reported in the New York
Stock Exchange-Composite Transactions on the date the option or
stock appreciation right is exercised (or on the next preceding
day such stock was traded on a stock exchange included in the
New York Stock Exchange-Composite Transactions if it was not
traded on any such exchange on the date the option or stock
appreciation right is exercised). Notwithstanding the foregoing
provisions, if a stock appreciation right is exercised during
the 60-day period commencing on the date of a Change in Control
of the Corporation, the Market Price for purposes of determining
the stock appreciation shall be the highest of (1) the market
price of the common stock of the Corporation, as determined
under the preceding sentence; (2) the highest market price of a
share of the common stock of the Corporation during the period
commencing on the ninetieth day preceding the date of exercise
of the stock appreciation right and ending on the date of
exercise of the stock appreciation right; (3) the highest price
per share of common stock of the Corporation shown on Schedule
13D or an amendment thereto filed pursuant to Section 13(d) of
the Securities Exchange Act of 1934 by any person holding 20% of
the combined voting power of the Corporation's then outstanding
voting securities; or (4) the highest price paid or to be paid
per share of common stock of the Corporation pursuant to a
tender or exchange offer as determined by the Committee.
11.10: "Non-Qualified Stock Option" means any stock option
granted pursuant to this Plan which is not an Incentive Stock
Option.
(PAGE15)
11.11: "Retirement" shall mean termination of employment with
the Corporation or a subsidiary or affiliate with the right to
receive immediately a non-actuarially reduced pension under the
Corporation's Retirement Program; provided, however, that if the
participant is employed by a foreign affiliate of the
Corporation and/or is not eligible to participate in the
Corporation's Retirement Program, "Retirement" shall mean
termination of employment with the Corporation after the
participant has (i) attained age 65, (ii) attained age 62 and
completed at least 10 years of employment with the Corporation,
or (iii) accumulated 85 points, where each year of the
participant's age and each year of employment with the
Corporation count for one point.
11.12: "Restricted Stock" means stock of the Corporation
subject to restrictions on the transfer of such stock,
conditions of forfeitability of such stock, or any other
limitations or restrictions as determined by the Committee.
11.13: "Stock Appreciation" shall be based on the excess of
the Market Price of the common stock over the option price of
the related option stock, as determined by the Committee.
Section 12: Amendment, Suspension, or Termination.
12.1: The Board of Directors may suspend, terminate, or amend
the Plan, including but not limited to such amendments as may be
necessary or desirable resulting from changes in the federal
income tax laws and other applicable laws.
Section 13: Effective Date and Duration of the Plan.
No award shall be granted under this Plan for any calendar year
commencing on or after January 1, 2006.
IN WITNESS WHEREOF, and as evidence of the adoption of this
Plan, the Corporation has caused this instrument to be signed by
its duly authorized officer as of October 22, 1996.
PRAXAIR, INC.
By: /s/ Barbara R. Harris
Barbara R. Harris
Title: Vice President, Human Resources
(PAGE 16)
Exhibit 5.1
December l8, 1996
Board of Directors
Praxair, Inc.
39 Old Ridgebury Road
Danbury, CT 06817-5113
Re: Post Effective Amendment No. 2 to Registration Statement
No. 33-48479 on Form S-8 for 1996
Praxair, Inc.
Performance Incentive Plan
Dear Sirs/Madame:
We are acting as counsel to Praxair, Inc., a Delaware
corporation ("Corporation") in connection with the preparation
and fling of a Post Effective Amendment No. 2 to Registration
Statement No. 33-48479 on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended,
("Act") with the Securities and Exchange Commission
("Commission") relating to shares of the common stock, $0.1 par
value per share ("Common Stock"), of the Corporation offered for
sale pursuant to the 1992 Praxair Inc. Long Term Incentive Plan;
1996 Praxair, Inc. Senior Executive Performance Plan and the
1996 Praxair, Inc. Performance Incentive Plan ("Plans").
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate
records, certificates of public officials and officers of the
Corporation and such other instruments as we have deemed
necessary or appropriate as a basis for the opinions expressed
below.
For purposes of this opinion we have assumed the authenticity
of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the
legal capacity of all natural persons, the genuineness of all
signatures on all documents examined by us, the authority of
such persons signing on behalf of the parties thereto other than
the Corporation and the due authorization, execution and
delivery of all documents by the parties thereto other than the
Corporation. As to certain factual matters material to the
opinion expressed herein, we have relied to the extent we deemed
proper upon representations, warranties and statements as to
matters of officers and other representatives of the
Corporation. Our opinion expressed below is subject to the
qualification that we express no opinion as to any law other
than the laws of the State of Delaware and the federal laws of
the United States of America. Without limiting the foregoing,
we express no opinion with respect to the applicability thereto
or effect of municipal laws or the rules, regulations or orders
of any municipal agencies within any such state.
Based upon the foregoing, we are of the opinion that:
1. The Corporation has been duly organized and is validly
existing under the laws of the State of Delaware.
2. The Plans have been duly adopted by the Board of Directors
of the Corporation.
3. The shares of Common Stock of the Corporation to which the
Registration Statement relates have been duly authorized and
reserved for issuance pursuant to the Plan and, when issued and
sold pursuant to the Plan, will be legally issued, fully paid
and nonassessable.
This opinion is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that
expressly stated herein. We assume no obligation to revise or
supplement this opinion should the present laws of the State of
Delaware or the federal laws of the United States of America be
changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as an Exhibit 5
to the Registration Statement. In giving such consent, we do
not admit that we are in the category of persons whose consent
is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
KELLEY DRYE & WARREN LLP
(PAGE17)
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Post Effective Amendment
No. 2 to Registration Statement on Form S-8 of our report dated
February 5, 1996, which appears on page 41 of the Annual Report
to Shareholders of Praxair, Inc., which is incorporated by
reference in Praxair, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1995.
PRICE WATERHOUSE LLP
Stamford, Connecticut
December 13, 1996
(PAGE18)
Exhibit 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 registration
statement of our reports dated February 14, 1996 and February 6,
1995 (except with respect to the matter discussed in Note 6, as
to which the date is March 2, 1995) on the consolidated
financial statements of CBI Industries, Inc. and subsidiaries
included in the Current Report of Praxair, Inc. on Form 8-K
filed March 1, 1996 and January 16, 1996, respectively, and to
all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Chicago, Illinois
December 13, 1996
