As Filed with the Securities and Exchange Commission on December 18, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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)
1993 Praxair Compensation Deferral Program
(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 1,500,000
Proposed maximum offering price per share (2) $46.625
Proposed maximum aggregate offering price (2) $69,937,500.00
Amount of registration fee $21,194.00
(1) Also includes the Common Stock Purchase Rights associated
therewith.
(2) Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(c) and (h)
under the Securities Act of 1933, as amended.
Exhibit Index is located on page 7
(PAGE2)
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 1993
Praxair Compensation Deferral Program (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
The following documents have been filed by Praxair, Inc.
(the "Registrant") with the Commission and are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995 which contains audited financial
statements for the most recent year for which such statements
have been filed.
(b) The description of the Registrant's Common Stock, par
value $0.01 per share, contained in the Registrant's
Registration Statement on Form 10 (File No. 1-11037), filed with
the Commission on March 10, 1992, as amended by Form 8, dated
May 22, 1992, Form 8, dated June 9, 1992, and Form 8, dated June
12, 1992.
(c) All documents subsequently filed by the Registrant
with the Commission pursuant to Sections 13(a), 13(c), 14, or
15(d) of the 1934 Act, prior to the filing of a post- effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
(PAGE3)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 145 of the General Corporation Law
of the State of Delaware (the "GCL"), which provides for
indemnification of directors, officers and other employees in
certain circumstances, and to Section 102(b)(7) of the GCL,
which provides for the elimination or limitation of the personal
liability for monetary damages of directors under certain
circumstances. Article VIII of the Restated Certificate of
Incorporation of the Registrant eliminates the personal
liability for monetary damages of directors under certain
circumstances and provides indemnification to directors and
officers of the Registrant to the fullest extent permitted by
the GCL. Among other things, these provisions provide
indemnification for officers and directors against liabilities
for judgments in and settlements of lawsuits and other
proceedings and for the advance and payment of fees and expenses
reasonably incurred by the director or officer in defense of any
such lawsuit or proceeding.
The directors and officers of the Registrant are covered by
insurance policies indemnifying against certain liabilities,
including certain liabilities arising under the Securities Act
of 1933, which might be incurred by them in such capacities and
against which they may not be indemnified by the Corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
4.1 1993 Praxair Compensation Deferral Program
4.2 Article IV of the Registrant's Restated Certificate of
Incorporation, defining the rights of holders of the capital
stock of the Registrant (incorporated herein by reference to
Appendix A to the Registrant's Information Statement, filed as
Exhibit 2.01 to the Registrant's Registration Statement on Form
10 (File No. 1-11037), filed with the Commission on March 10,
1992, as amended by Form 8, dated May 22, 1992, Form 8, dated
June 9, 1992, and Form 8, dated June 12, 1992).
4.3 Form of Rights Agreement between the Registrant and The
Bank of New York, as Rights Agent (incorporated herein by
reference to Exhibit 4.02 to the Registrant's Registration
Statement on Form 10 (File No. 1-11037), filed with the
Commission on March 10, 1992, as amended by Form 8, dated May
22, 1992, Form 8, dated June 9, 1992, and Form 8, dated June 12,
1992).
5.1 Opinion of Counsel - Kelley Drye & Warren LLP
23.1 Consent of Independent Accountants - Price Waterhouse LLP.
(PAGE4)
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 on the signature page hereof)
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post- effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high 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; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided however that subparagraphs (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those subparagraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or 15(d) of the 1934 Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(PAGE5)
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual
report pursuant to Sections 13(a) or 15(d) of the 1934 Act (and
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act), that
it is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions described in Item 6 of this Registration
Statement, or otherwise, the
Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
SIGNATURES
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 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)
(PAGE6)
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 resubstitution, 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
John A. Clerico Vice President, Alejandro Achaval
Chief Financial Officer and Director Director
(Principal Financial Officer)
/s/ Ronald L. Kuehn, Jr. /s/ Edgar G. Hotard
Ronald L. Kuehn, Jr. Edgar G. Hotard
Director President and Director
/s/ John J. Creedon /s/ Benjamin F. Payton
John J. Creedon Benjamin F. Payton
Director Director
/s/ H. William Lichtenberger /s/ C. Fred Fetterolf
H. William Lichtenberger C. Fred Fetterolf
Chairman and Chief Executive Officer Director
(Principal Executive Officer)
/s/ G. Jackson Ratcliffe, Jr.
G. Jackson Ratcliffe, Jr. Dale F. Frey
Director Director
/s/ H. Mitchell Watson, Jr. /s/ Claire W. Gargalli
H. Mitchell Watson, Jr. Claire W. Gargalli
Director Director
(PAGE7)
EXHIBIT INDEX
EXHIBIT SEQUENTIAL PAGE NO.
4.1 1993 Praxair Compensation Deferral Program 8
4.2 Article IV of the Registrant's Restated Incorporated
Certificate of Incorporation, defining the by reference
rights of holders of the capital stock
of the Registrant (incorporated herein by
reference to Appendix A to the Registrant's
Information Statement, filed as Exhibit 2.01
to the Registrant's Registration Statement
on Form 10 (File No. 1-11037), filed with the
Commission on March 10, 1992, as amended by
Form 8, dated May 22, 1992, Form 8, dated
June 9, 1992, and Form 8, dated June 12, 1992).
4.3 Form of Rights Agreement between the Registrant and Incorporated
The Bank of New York, as Rights Agent (incorporated by reference
herein by reference to Exhibit 4.02 to the
Registrant's Registration Statement on Form 10
(File No. 1-11037), filed with the Commission on
March 10, 1992, as amended by Form 8, dated
May 22, 1992, Form 8, dated June 9, 1992, and
Form 8, dated June 12, 1992).
5.1 Opinion of Counsel - Kelley Drye & Warren LLP 27
23.1 Consent of Independent Accountants - 29
Price Waterhouse LLP
23.2 Consent of Independent Accountants -
Arthur Andersen LLP 30
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
(PAGE8)
EXHIBIT 4.1
1993 PRAXAIR COMPENSATION DEFERRAL PROGRAM
RESTATED
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
Originally adopted by the Board: December 1, 1993
Incorporates Amendments Adopted: January 23, 1995
September 25, 1995
July 22, 1996
(PAGE9)
TABLE OF CONTENTS
PAGE
Section 1: Purpose 1
Section 2: Definitions 2
Section 3: Administration 7
Section 4: Eligibility to Participate 7
Section 5: Election to Participate 7
Section 6: Payments to Participants and Beneficiaries 9
Section 7: Beneficiaries 12
Section 8: Earnings Accruals 13
Section 9: General Provisions 15
(PAGE10)
1993 PRAXAIR COMPENSATION DEFERRAL PROGRAM
SECTION 1: PURPOSE
The purpose of the 1993 Praxair Compensation Deferral Program
(the 'Program') is to provide (i) a procedure by which
recipients may annually elect in advance to defer a portion or
all of their cash awards granted pursuant to the Corporation's
Variable Compensation Plans, the 1992 Praxair, Inc. Long Term
Incentive Plan, the 1996 Praxair, Inc. Senior Executive
Performance Award Plan, and successors to such plans, all as
amended from time to time , (ii) a procedure by which Eligible
Employees may defer all or a portion of their base salary and
(iii) Eligible Employees with matching contributions lost under
the Savings Program because of the limitations imposed under
Section 401(a)(17) of the Code. The Program shall be effective
for amounts payable on or after January 1, 1994; provided that
base salary and cash awards under the 1992 Praxair, Inc. Long
Term Incentive Plan and the 1996 Praxair, Inc. Senior Executive
Performance Award Plan may not be deferred unless and until a
determination is made by the Vice President-Human Resources to
allow such deferrals in the applicable case.
SECTION 2: DEFINITIONS
2.1: "Beneficiary" means the person, persons or
estate entitled (as determined under Section 7) to receive
payment under the Program following a Participant's death.
2.2: "Change in Control of the Corporation"
means the occurrence of any of the following circumstances:
(1) If a change in control of the Corporation
would be required to be reported in response to item
1(a) of the current report of Form 8-K, as in effect on the date
hereof, pursuant to Sections 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether
or not the Corporation is then subject to such reporting
requirement;
(2) there shall be consummated: (A) any consolidation or
merger of the Corporation in which the Corporation is not the
continuing or surviving corporation or pursuant to which shares
of the Corporation's common stock would be converted into cash,
securities or other property, other than a merger of the Corporation
in which the holders of the Corporation's common stock immediately
prior to the merger have the same proportion and ownership of common
stock of the surviving corporation immediately after the merger, or
(B) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of
the assets of the Corporation, provided, that the divestiture of
less than substantially all of the assets of the Corporation in
one transaction or a series of related transactions, whether
effected by sale, lease, exchange, spin-off, sale of the stock
or merger of a subsidiary or otherwise, shall not constitute a
Change in Control of the Corporation;
(3) any "person" or "group" within the meaning of Sections
13(d) and 14(d) (2) of the Exchange Act (A) becomes the "beneficial
owner" as defined in Rule 13d-3 under the Exchange Act of more than
20% of the then outstanding voting securities of the Corporation,
otherwise than through a transaction or transactions arranged by,
or consummated with the prior approval of, the Board of Directors
of the Corporation, or (B) acquires by proxy or otherwise the right
to vote for the election of directors, for any merger or consolidation
of the Corporation or for any other matter or question more than 20% of
the then outstanding voting securities of the Corporation,
otherwise than through an arrangement or arrangements
consummated with the prior approval of the Board of Directors of
the Corporation;
(PAGE11)
(4) if during any period of twenty-four consecutive months,
Present Directors and/or New Directors cease for any reason to
constitute a majority of the Board of Directors of the Corporation.
For purposes of this Agreement, "Present Directors" shall mean
individuals who at the beginning of such consecutive twenty-four
month period were members of the Board and "New Directors" shall
mean any director whose election by the Board of Directors of the
Corporation or whose nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of the
Directors then still in office who were Present Directors or New
Directors; or
(5) any "person" or "group" within the
meaning of Sections 13(d) and 14(d) of the Exchange Act that is
a 'beneficial owner', as defined in Rule 13d-3 under the
Exchange Act, of 20% or more of the then outstanding voting
securities of the Corporation commences soliciting proxies.
Notwithstanding the foregoing, Present Directors and/or New
Directors may, by two-thirds vote of such Directors, declare
that a given transaction shall not constitute a Change in
Control of the Corporation for purposes of this Program.
2.3: "Code" means the Internal Revenue Code of 1986,
as amended from time to time.
2.4: "Committee" means the Compensation and Management
Development Committee of the Board of Directors of the Corporation.
2.5: "Corporation" means Praxair, Inc., and any successor
thereof by merger, consolidation or otherwise.
2.6: "Date of Deferral" means (i) with respect to cash
awards granted pursuant to Eligible Plans, the date on which the
Corporation issues checks to recipients for such awards,
(ii) with respect to salary deferral, the date on which the
relevant salary would be paid and (iii) with respect to matching
contributions made by the Corporation pursuant to Section 5.3 of
this Program for a given Service Year, the day following the date
that the Committee determines (for purposes of determining the Stock
Value Rate in accordance with Section 2.18 ) the common stock value
for the matching contribution deferral.
2.7: "Disability" means a Participant's total physical or
mental inability to perform any work for compensation or profit in
any occupation for which the Participant is reasonably qualified by
reason of training, education or ability, and which inability is
adjudged to be permanent, as determined by the Vice President-Human
Resources or his or her designee.
2.8: "Discounted Stock Value Rate" means the Stock Value Rate
except that the applicable value of the Corporation's common stock
determined in accordance with Section 2.18, shall be reduced by
ten (10%) percent
2.9: "Eligible Plan" means any of those incentive plans of
the Corporation listed in clause (i) of Section 1 hereof.
2.10: "Employee" means a person who is an employee of the
Corporation or one of its subsidiary corporations and "Eligible
Employee" means a person who is a participant in one of the Variable
Compensation Plans and whose compensation is included in the payroll
accounts of the Corporation or any U.S. subsidiary thereof.
2.11: "Exchange Act" means the Securities Exchange Act of 1934.
(PAGE12)
2.12: "Fixed Income Rate" means the rate of interest for the
Fixed Income Fund under the Corporation's Savings Program, in effect
from time to time.
2.13: "Participant" means an Eligible Employee who (i) elects
in advance under the Program to defer a portion or all of the Employee's
base salary, (ii) elects in advance under the Program to defer a portion
or all of any cash award that may granted to the Employee pursuant to an
Eligible Plan in a calendar year, and who is in fact subsequently
granted such an award which is payable during said year on the Date
of Deferral or (iii) receives compensation (as defined in Section 1.12
of the Savings Program) for such calendar year in an amount which is in
excess of such compensation which may be considered under Section 1.12
of the Savings Program because of the limitations imposed by Code
Section 401(a)(17).
2.14: "Program" means this 1993 Praxair Compensation Deferral Program.
2.15: "Retirement" means termination of employment with the
right to an immediate retirement benefit under the Corporation's
Retirement Program (or under circumstances which would have allowed
for such an immediate retirement benefit had the Participant been a
participant in the Corporation's Retirement Program).
2.16: "Savings Program" means The Savings Program for Employees
of Praxair, Inc. and Participating Subsidiary Companies, as amended
from time to time.
2.17: "Service Year" means one of the calendar years on and after
1993, (i) with respect to which a Variable Compensation Award may be paid
during the following year on the Date of Deferral or (ii) with respect to
which a matching contribution pursuant to Section 5.3 of this Program
may be made during the following year on the Date of Deferral.
2.18: "Stock Value Rate" means the difference between the value
of the Corporation's common stock (i) as of the date amounts credited
to the Program are directed, by initial election or by reallocation,
into the Stock Value Rate (or, in the case of initial deferrals of
matching contributions or of Variable Compensation Awards, the common
stock value determined by the Committee in accordance with the
last sentence of this Article 2.18), and (ii) the relevant date
of determination of the amount of earnings in accordance with
Section 8 hereof. Such value shall include the value of any
dividends paid on the stock during the period for which the
Stock Value Rate is being determined, as if such dividends were
reinvested, when payable, in additional shares of the
Corporation's common stock purchased at the value less five
percent (5%) of the Corporation's common stock on the dividend
payable date. Except as provided in the next sentence, the
value of the Corporation's common stock for purposes of this
Section 2.18, shall mean the closing price of the stock on the
New York Stock Exchange on the relevant date of determination.
In January of each calendar year, the Committee shall determine
the common stock value to be used in valuing deferrals of
Variable Compensation Awards and matching contributions to be
awarded in the calendar year for the previous Service Year.
2.19: "Unforeseen Emergency" means an event beyond the
control of the Participant that would result in severe financial
hardship to the Participant if early withdrawal of the Participant's
cash awards, matching contributions or base salary deferrals and
related earnings (as provided for in Section 6.1 (c)) were not
permitted. Whether a Participant has an Unforeseen Emergency shall
be determined by the Vice President-Human Resources or his or her designee.
2.20: "Variable Compensation Plans" means the 1992 Praxair, Inc.
Variable Compensation Plan, the Praxair, Inc. Mid-Management Variable
Compensation Plan, and successors to such plans, all as amended from
time to time.
(PAGE13)
2.21: "Variable Compensation Award" means a
variable compensation award under a Variable Compensation Plan
or an Annual Performance Award under the 1996 Praxair, Inc.
Senior Executive Performance Award Plan.
2.22: "Vice President-Human Resources" means the Vice
President-Human Resources of the Corporation.
SECTION 3: ADMINISTRATION
The Committee shall supervise the administration and
interpretation of the Program, may establish administrative
regulations to further the purpose of the Program and shall take
any other action necessary to the proper operation of the
Program. All decisions and acts of the Committee shall be final
and binding upon all Participants, their Beneficiaries and all
other persons.
SECTION 4: ELIGIBILITY TO PARTICIPATE
To be eligible to participate in the Program for a
given calendar year, a person must have become an Eligible
Employee not later than the day on or before which Eligible
Employees must make the election provided for in Section 5 for
deferral of cash awards or base salary to be otherwise paid in
that calendar year.
SECTION 5: ELECTION TO PARTICIPATE
5.1: Participation in Program. During each of the years
the Program is in effect, Eligible Employees shall be informed
of the opportunity to participate in the Program. An Eligible
Employee choosing to participate with respect to deferral of
cash awards or base salary must make an election to do so on or
before the day designated by the Vice President-Human Resources
and otherwise in accordance with such procedures as may be
established.
5.2: Effective Date of Participation. (a) After the
designated election date as provided in Section 5.1, a timely
election to defer an award granted pursuant to an Eligible Plan
shall be irrevocable with respect to the calendar year and plan
for which it is made. Participation in this Program with
respect to cash awards shall become effective only on the
applicable Date of Deferral and only if, on such date, the
Eligible Employee receives an award under one of the elected
Eligible Plans (or would have received an award but for an
election to defer under the Program).
(b) An election to defer base salary must be
made during the election period immediately preceding the
calendar year in which services to the Corporation will be
performed. Participation in this Program with respect to base
salary shall become effective only on the first Date of Deferral
in said calendar year and only if, and only so long as , the
Eligible Employee remains employed with the Corporation. A
Participant may suspend his or her election to defer his or her
base salary at any time; provided, however, that such Eligible
Employee may not resume deferrals of base salary until the
following calendar year.
5.3: Corporation Matching Contribution. (a) Without
requiring any election by the Eligible Employee to participate
in the Program, the Corporation shall credit a Participant with
an amount equal to 3.75 % of that portion of a Participant's
previous calendar year compensation (as defined in Section 1.12
of the Savings Program without regard to Code Section
401(a)(17), and without regard to any deferrals under this
Program) which exceeds $150,000. Such $150,000 shall be
adjusted at the same time and in the same manner as the
limitation described in Code Section 401(a)(17).
(PAGE14)
(b) The Corporation shall credit each
Participant with the amount determined pursuant to subsection
(a) of this Section 5.3, in arrears, on the relevant Date of
Deferral, provided that such Participant is employed by the
Corporation on the Date of Deferral. Notwithstanding the
foregoing, if the Participant terminates employment with the
Corporation during the Service Year by reason of death,
Disability, Retirement, or termination by the Corporation other
than for cause, then the Corporation shall credit a Participant
on the Date of Deferral with the amount determined pursuant to
subsection (a) of this Section 5.3 even though such Participant
is not employed by the Corporation on said Date of Deferral.
SECTION 6: PAYMENTS TO PARTICIPANTS AND BENEFICIARIES
6.1: Time of Payment. (a) Subject to subsections (b),
(c) and (d) of this Section 6.1, a Participant shall begin to
receive payment of his or her deferrals, and any earnings
accruals credited under Section 8 during the January next
following his or her last day of work prior to Retirement, or,
immediately upon his or her other termination of employment
occuring prior to scheduled retirement. Participants shall be
deemed to have elected to defer all amounts until termination of
employment in accordance with this Article 6.1(a) unless a
contrary election is made pursuant to Article 6.1(b) below.
(b) Notwithstanding any provision in this Program to
the contrary, a Participant may, at the time of an election to
defer either base salary or cash awards granted pursuant to
Eligible Plans, make an irrevocable election to commence payment
of any such amounts deferred under this Program upon a specific
future payment date which is at least one year after the
relevant Date of Deferral or such shorter period as the
Committee may approve. A Participant making such an election
shall receive his or her payment in the January next following
said future payment date.
(c) A Participant who has not yet terminated
employment, but has an Unforeseen Emergency, may receive payment
of any or all of his or her deferred base salary, deferred
matching contribution, deferred cash awards and earnings
accruals credited to him or her pursuant to Section 8 of this
Program; provided that the Participant may not receive an amount
greater than the amount necessary to meet the Unforeseen
Emergency plus any amounts necessary to pay federal, state and
local income taxes or penalties reasonably anticipated to result
from a withdrawal under this Section 6.1.
(d) Notwithstanding any provision in this Program to
the contrary, a Participant shall receive payment of his or her
entire account balance under this Program at such time as (i)
the Board of Directors of the Corporation determines that a
Change in Control of the Corporation has occurred and (ii) the
Chief Executive Officer of the Corporation provides written
authorization for such payment. Such payment shall be made in
full within 45 days after the Change in Control of the
Corporation.
6.2 Form of Payments. (a) Subject to paragraphs (b) and
(d) below, payments under this Program shall be made in full in
a single payment.
(b) A Participant may, in lieu of the form of
payment described in paragraph (a), elect that all amounts
which have been deferred to the Participant's termination of
employment under Article 6.1(a) be paid in annual installments
over a period designated by the Participant; provided that
(PAGE15)
(i) such election is made only one time
and is made in the calendar year of the Participant's date of
Retirement; and
(ii) the election receives the consent
of the Vice President Human Resources.
(c) If a Participant dies at any time before
having received any portion of his or her account balance under
this Program, payment of the remaining amounts shall be made in
full to the Participant's Beneficiary in a single payment.
(d) If any distribution otherwise payable
under this Program would be disallowed in any part as a
deduction to the Corporation in accordance with Section 162(m)
(or a successor Section) of the Code, the Committee may
determine to pay the amount of such distribution in installments
such that the Participant or Beneficiary shall receive the
maximum amount permissible in each installment and still
preserve the Corporation's full tax deduction.
6.3: Payment in U.S. Dollars. All payments under
this Program with respect to amounts which (i) at the time of
such payment were accruing at the Fixed Income Rate, or (ii) at
the time of such payment, if such payment is made before January
1, 1997, were accruing at either the Stock Value Rate or the
Discounted Stock Value Rate, shall be made in U.S. dollars.
Effective for any payment to be made on or after January 1,
1997, with respect to amounts which were accruing under either
the Stock Value Rate or the Discounted Stock Value Rate, such
payment shall be made in shares of the common stock of the
Corporation.
6.4: Reduction of Payments: Share Withholding.. (a)
All payments under this Program shall be reduced by any and all
amounts that the Corporation is required to withhold pursuant to
applicable law.
(b) In order to enable the Corporation to meet any
applicable federal, state or local tax withholding requirements,
a Participant (or Beneficiary) who is receiving payment in
shares of common stock of the Corporation, may elect to have the
Corporation withhold shares that would otherwise be delivered to
such Participant, or may deliver to the Corporation other shares
of common stock of the Corporation owned by the Participant.
The value of any such shares of common stock so withheld or
delivered 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 of said
payment.
6.5: Additional Deferrals. Notwithstanding Section
6.1, a Participant who has made an election to defer a cash
award or base salary in accordance with Section 5 hereof may
make an election to further defer such amounts and a Participant
may make an election to further defer corporation matching
contributions credited purusant to Section 5.3; provided such
additional elections are made in accordance with the following
provisions:
(a) The additional deferral election must be
made no later than during the tax year immediately preceding the
year the Participant would otherwise receive payments pursuant
to Section 6.1 hereof;
(b) For each original deferral election and
for all corporation matching contributions credited, there may
be only one additional deferral election made pursuant to this
Section 6.5; and
(c) The additional deferral must be for a
period of at least two years.
(PAGE16)
SECTION 7: BENEFICIARIES
A Participant may at any time and from time to time prior
to death designate one or more Beneficiaries to receive any
payments to be made following the Participant's death. If no
such designation is on file with the Corporation at the time of
a Participant's death, the Participant's Beneficiary shall be
the beneficiary or beneficiaries named in the beneficiary
designation most recently filed by the Participant with the
Corporation under the Corporation's Savings Program. If the
Participant has not effectively designated a beneficiary under
the Savings Program, or if no beneficiary so designated has
survived the Participant, the Participant's Beneficiary shall be
the Participant's surviving spouse, or, if no spouse has
survived the Participant, the estate of the deceased
Participant. If an individual Beneficiary cannot be located for
a period of one year following the Participant's death, despite
mail notification to the Beneficiary's last known address, and
if the Beneficiary has not made a written claim for benefits
within such period to the Vice President-Human Resources, the
Beneficiary shall be treated as having predeceased the
Participant. The Vice President-Human Resources may require
such proof of death and such evidence of the right of any person
to receive all or part of the benefit of a deceased Participant
as the Vice President-Human Resources may consider to be
appropriate. The Vice President-Human Resources may rely upon
any direction by the legal representatives of the estate of a
deceased Participant, without liability to any other person.
SECTION 8: EARNINGS ACCRUALS
8.1: General. Each Participant's account balance shall
be credited with earnings from the Date of Deferral through the
date such deferral is paid out, or withdrawn, pursuant to Section
6.1. Earnings under this Section 8.1 shall accrue at the rate
elected in accordance with Section 8.2.
8.2: Earnings Accrual Rate.
(a) Accrual Rates. Earnings accruing in
accordance with Section 8.1 shall accrue at (i) the Fixed Income
Rate, (ii) the Stock Value Rate, (iii) the Discounted Stock
Value Rate, or a combination of the three Rates. An election to
use the Discounted Stock Value Rate shall be effective for not
less than five (5) years. In the case of an election to defer
base salary for the following calendar year at the Discounted
Stock Value Rate, the election shall be effective for a period
ending no earlier than the fifth anniversary of the earliest of
(i) July 1 of said calendar year, (ii) the effective date of the
Participant's suspension of base salary deferral pursuant to
Section 5.2(b) herein and (iii) the date of termination of the
Participant's employment with the Corporation, if applicable,
during said calendar year. Notwithstanding the foregoing, if
(i) a Participant has elected under Section 6.1(a) to receive
payment upon termination of employment, and such Participant's
employment is terminated by the Corporation without cause, or
such employment is terminated as a result of Retirement, or (ii)
an Unforeseen Emergency occurs, or (iii) a Change in Control of
the Corporation occurs, or (iv) the Participant dies, then such
Participant may then receive a payout from a Discounted Stock
Value Rate account on the payment date set forth in Sections
6.1(a), 6.1(c), 6.1(d) and 6.2(c) respectively (and all subject
to Section 6.2(d)); even if the applicable minimum five (5)
years period has not yet passed as of said payment date.
(PAGE17)
(b) Initial Election. Subject to
subparagraph (c), a Participant shall designate at the time of
the election to defer base salary or cash awards granted
pursuant to an Eligible Plan under Section 5, which accrual rate
or rates shall apply to each deferral, provided that such
elections must be in 10% increments. Such elections shall be
effective as of the Date of Deferral. All matching
contributions made to a Participant under Section 5.3 of this
Program shall at all times be invested at the Stock Value Rate.
(c) [Reserved]
(d) Election Changes. A Participant may
elect to change the accrual rate under this Section 8.2 with
respect to any or all previous cash award deferrals or salary
deferrals under the Program from Fixed Income Rate to the Stock
Value Rate. Any election changes made pursuant to this
subsection (d) shall be effective as of January 1st of the
calendar year following the calendar year in which the election
change is submitted to the Corporation in accordance with
procedures established by the Vice President - Human Resources
(e) Special Election Change of Previous
Deferrals. Notwithstanding any provision in subsection (d) to
the contrary (but in addition to any election change rights
available under said subsection), on or before December 15,
1996, a Participant may, in accordance with the procedures
established by the Vice President - Human Resources, make a
one-time election to change to the Fixed Income Rate any
contrary earnings accrual rate election under this Section 8.2
made with respect to any or all of his or her previous Variable
Compensation Award deferrals under this Program.
SECTION 9: GENERAL PROVISIONS
9.1: Prohibition of Assignment of Transfer. Any
assignment, hypothecation, pledge or transfer of a Participant's
or Beneficiary's right to receive payments under the Program
shall be null and void and shall be disregarded.
9.2: Program Not To Be Funded. The Corporation is
not required to, and will not, for the purpose of funding the
Program, segregate any monies from its general funds, create any
trusts, or make any special deposits, and the right of a
Participant or Beneficiary to receive a payment under the
Program shall be no greater than the right of an unsecured
general creditor of the Corporation.
9.3: Effect of Participation. Neither selection
as an Eligible Employee, nor an election to participate, nor
participation, in the Program, shall entitle an Eligible
Employee to receive a cash award under the any of the Eligible
Plans, or affect the Corporation's right to discharge an
Eligible Employee or a Participant.
9.4: Communications To Be in Writing. All
elections, requests and communications to the Corporation from
Participants and Beneficiaries, and all communications to such
persons from the Corporation, shall be in writing, and in such
form and manner, and within such time, as the Corporation shall
determine.
9.5: Absence of Liability. No officer, director or
employee of the Corporation shall be personally liable for any
act or omission to act, under the Program, of any other person,
or, except in circumstances involving bad faith, for such
officer's, director's or employee's own act or omission to act.
9.6: Titles for Reference Only. The titles given
herein to Sections and subsections are for reference only and
are not to be used to interpret the provisions of the Program.
(PAGE18)
9.7: Connecticut Law To Govern. All questions
pertaining to the construction, regulation, validity and effect
of the provisions of the Program shall be determined in
accordance with Connecticut law.
9.8: Amendment. The Committee may amend the
Program at any time, but no amendment may be adopted which
alters the payments due Participants or Beneficiaries, as of the
date of the amendment, or the times at which payments are due,
without the consent of each Participant affected by the
amendment and of each Beneficiary (of a then deceased
Participant) affected by the amendment. In addition, any
amendment which does not significantly affect the amount of any
past or future, benefits under the Program may be authorized by
the Vice President-Human Resources.
9.9: Program Termination. The Committee may
terminate the Program at any time. In the event of such
termination, all amounts under this Program shall become
immediately payable in accordance with Section 6.2, provided
that the Committee, in its discretion, upon Program termination
or at any time thereafter, may decide to make lump sum payments
in lieu of annual payments.
PRAXAIR, INC.
By: /s/ Barbara R. Harris
(PAGE19)
EXHIBIT 5.1
December 18, 1996
Board of Directors
Praxair, Inc.
39 Old Ridgebury Road
Danbury, CT 06810-5113
RE: Registration Statement on Form S-8 for 1993 Praxair
Compensation Deferral Program
Dear Sirs/Madame:
We are acting as counsel to Praxair, Inc., a Delaware corporation
("Corporation") in connection with the preparation and filing of a
Registration Statement 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 1,500,000 shares of the
Corporation's common stock, $.01 par value per share ("Common Stock")
offered for sale pursuant to the 1993 Praxair Compensation Deferral
Program ("Plan").
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 Plan has 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 addresses 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
(PAGE20)
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this 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
(PAGE21)
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
