As filed with the Securities and Exchange Commission on May 4, 2005
Registration No. 333-
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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 06-1249050
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
39 Old Ridgebury Road
Danbury, CT 06810
(Address of Principal Executive Offices)
2005 EQUITY COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS OF PRAXAIR, INC.
(Full Title of the Plan)
James T. Breedlove
Vice President, General Counsel and Secretary
Praxair, Inc.
39 Old Ridgebury Road
Danbury, CT 06810
(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 Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share(1) Price(1)
Common Stock, 500,000 Shares $45.05 $22,525,000 $2,652
$0.01 par value (2)
(1) 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. The price per share is estimated based on the average of
the high and low trading prices for Praxair, Inc.'s common stock on
April 27, 2005, as reported by the New York Stock Exchange on May 3,
2005.
(2) Includes the Common Stock Purchase Rights associated therewith.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") will be sent or given
to participants in the 2005 Equity Compensation Plan for Non-Employee Directors
of Praxair, Inc. (the "Plan") by Praxair, Inc., a Delaware corporation (the
"Company"), as specified in Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and are hereby incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 2004,
as filed with the Commission on March 2, 2005 ("2004 Form 10-K").
(b) Current Reports on Form 8-K, each as filed with the Commission on April
29, 2005, April 27, 2005, March 1, 2005, February 28, 2005, February 25, 2005,
February 7, 2005, January 31, 2005, January 26, 2005 and January 25, 2005.
(c) The portions of our proxy statement relating to our Annual Meeting of
Stockholders held on April 26, 2005, as filed with the Commission on March 10,
2005, that have been incorporated by reference into the 2004 Form 10-K.
(d) The description of the Company's Common Stock, $0.01 par value, which
is 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.
(e) All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange 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 hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware.
Sections 102 and 145 of the Delaware General Corporation Law, or Delaware code,
set forth the conditions and limitations governing the indemnification of
officers, directors and other persons by Delaware corporations.
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Generally, Section 145 of the Delaware code provides that a Delaware
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any action, suit or proceeding (except
actions by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation
against all expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In addition, a Delaware corporation may
similarly indemnify such person for expenses actually and reasonably incurred by
him or her in connection with the defense or settlement of any action or suit by
or in the right of the corporation, provided such person acted in good faith and
in a manner he or she reasonably believed to be in the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall have determined upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. To the extent that a present or former
director or officer of a Delaware corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim issue or matter therein, such person shall be indemnified
against expenses actually and reasonably incurred by such person in connection
therewith.
Generally, Section 102(b)(7) of the Delaware code provides that the
certificate of incorporation of a Delaware corporation may contain provisions
eliminating or limiting the personal liability of a director to a corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided that such provision may not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of law, (iii) under
section 174 of Title VIII, or (iv) for any transaction from which the director
derived an improper person benefit. No such provision may eliminate or limit the
liability of a director for any act or omission occurring prior to the date
which such provisions become effective.
Article VIII of our Restated Certificate of Incorporation eliminates the
personal liability for monetary damages of directors under certain circumstances
and provides that each person who is or was a director or officer of us, and
each such person who is or was serving at our request as a director or officer
of another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by us (including the heirs, executors, administrators and estate of
such person) shall be indemnified and advanced expenses by us to the fullest
extent permitted from time to time by the Delaware code or any applicable laws
as presently or hereafter in effect.
Section 145 of the Delaware code provides that a Delaware corporation shall
have the power to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such,
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whether or not the corporation would have the power to indemnify such person
against the same pursuant to the provisions of the Delaware code.
Our directors and officers are covered by insurance policies indemnifying
against certain liabilities, including certain liabilities arising under the
Act, which might be incurred by them in such capacities and against which they
may not be indemnified by us.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
NUMBER DESCRIPTION
4.1 2005 Equity Compensation Plan for Non-Employee Directors of Praxair,
Inc. (incorporated by reference to Exhibit 10.04 of the Company's
Current Report on Form 8-K filed on April 29, 2005 (File No.
1-11037)).
*5.1 Opinion of Kelley Drye & Warren LLP regarding the legality of the
shares being registered hereunder.
*23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered Public
Accounting Firm.
*23.2 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
*24 Powers of Attorney of Directors and Certain Officers of the Company
(included on the signature page hereof).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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
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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.
(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 paragraphs (a)(i) and (a)(ii) above 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 Securities Exchange
Act of 1934, that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions described in Item 6 of this Registration
Statement, or otherwise, the Company 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of 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 this 26th day of
April, 2005.
PRAXAIR, INC.
By: /s/ James T. Breedlove
-----------------------------------------
Name: James T. Breedlove
Title: Vice President, General Counsel
and Secretary
POWER OF ATTORNEY
SIGNATURES
Each person whose signature appears below appoints James T. Breedlove 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, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ DENNIS H. REILLEY Chairman of the Board, April 26, 2005
------------------------------ President and Chief Executive Officer
Dennis H. Reilley (Principal Executive Officer)
/S/ JAMES S. SAWYER Senior Vice President April 26, 2005
------------------------------ and Chief Financial Officer
James S. Sawyer (Principal Financial Officer)
/S/ PATRICK M. CLARK Vice President and Controller April 26, 2005
------------------------------ (Principal Accounting Officer)
Patrick M. Clark
/S/ JOSE ALVES Director April 26, 2005
------------------------------
Jose Alves
/S/ CLAIRE W. GARGALLI Director April 26, 2005
------------------------------
Claire W. Gargalli
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/S/ IRA D. HALL Director April 26, 2005
------------------------------
Ira D. Hall
/S/ RONALD L. KUEHN, JR. Director April 26, 2005
------------------------------
Ronald L. Kuehn, Jr.
/S/ RAYMOND W. LEBOEUF Director April 26, 2005
------------------------------
Raymond W. LeBoeuf
/S/ G. JACKSON RATCLIFFE, JR. Director April 26, 2005
------------------------------
G. Jackson Ratcliffe, Jr.
/S/ WAYNE T. SMITH Director April 26, 2005
------------------------------
Wayne T. Smith
/S/ H. MITCHELL WATSON, JR. Director April 26, 2005
------------------------------
H. Mitchell Watson, Jr.
Director April , 2005
------------------
Robert L. Wood
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
-------- ----------------------------------------------------------------------
4.1 2005 Equity Compensation Plan for Non-Employee Directors of Praxair,
Inc.(incorporated by reference to Exhibit 10.04 of the Company's
Current Report on Form 8-K filed on April 29, 2005 (File No.
1-11037)).
5.1 Opinion of Kelley Drye & Warren LLP regarding the legality of the
securities being registered hereunder.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered Public
Accounting Firm.
23.2 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on signature page hereof).
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* Filed herewith.
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