e424b3
The
information in this preliminary prospectus supplement is not
complete and may be changed without notice. Neither this
preliminary prospectus supplement nor the accompanying
prospectus is an offer to sell securities or a solicitation of
an offer to buy these securities in any jurisdiction where the
offering is not permitted.
|
Filed
Pursuant to Rule 424(b)(3)
Registration Number 333-162982
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS
SUPPLEMENT DATED JANUARY 11, 2010
Prospectus Supplement
January , 2010
(To Prospectus Dated November 9, 2009)
$
% Notes
due
Praxair, Inc. will pay interest on the notes
on
and
of each year,
beginning ,
2010. The notes will mature
on , .
We may redeem the notes at our option, at any time in whole or
from time to time in part, by paying the greater of
(i) 100% of the principal amount of and accrued interest on
the notes or (ii) a Make-Whole Amount. There is
no sinking fund for the notes.
Investing in the notes involves risk. See Risk
Factors in our Annual Report on
Form 10-K
for the year ended December 31, 2008.
|
|
|
|
|
|
|
|
|
|
|
Per Note
|
|
|
Total
|
|
|
Public offering price(1)
|
|
|
%
|
|
|
$
|
|
|
Underwriting discount
|
|
|
%
|
|
|
$
|
|
|
Proceeds, before expenses, to Praxair(1)
|
|
|
%
|
|
|
$
|
|
|
|
|
|
(1)
|
|
Plus accrued interest, if any, from
January , 2010 if settlement occurs after that
date.
|
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The notes will be ready for delivery in book-entry form only
through The Depository Trust Company on or about
January , 2010.
Joint Book-Running Managers
TABLE OF
CONTENTS
Prospectus Supplement
|
|
|
|
|
|
|
Page
|
|
|
|
|
S-2
|
|
|
|
|
S-2
|
|
|
|
|
S-3
|
|
|
|
|
S-3
|
|
|
|
|
S-4
|
|
|
|
|
S-5
|
|
|
|
|
S-7
|
|
|
|
|
S-8
|
|
Prospectus
|
|
|
|
|
|
|
Page
|
|
|
|
|
1
|
|
|
|
|
1
|
|
|
|
|
2
|
|
|
|
|
2
|
|
|
|
|
2
|
|
|
|
|
3
|
|
|
|
|
4
|
|
|
|
|
6
|
|
|
|
|
17
|
|
|
|
|
18
|
|
|
|
|
19
|
|
|
|
|
19
|
|
|
|
|
19
|
|
You should rely only on the information contained or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. We have not, and the underwriters have
not, authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not,
and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in
this prospectus supplement and the accompanying prospectus is
accurate as of the date on the front of this prospectus
supplement only. Our business, financial condition, results of
operations and prospects may have changed since that date.
References to we, us,
our, the Company, and
Praxair are to Praxair, Inc. and its subsidiaries
unless the context otherwise requires.
S-1
WHERE YOU CAN
FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC and our common stock is
listed on the New York Stock Exchange under the symbol
PX. Our SEC filings are available to the public over
the Internet at the SECs web site at http://www.sec.gov.
You may also read and copy any document we file at the
SECs public reference room at 100 F Street, NE,
Washington, D.C. 20549. You can call the SEC at
1-800-732-0330
for further information about the public reference rooms.
The SEC allows us to incorporate by reference the
information we file with them, which means we are assumed to
have disclosed important information to you when we refer you to
documents that are on file with the SEC. The information we have
incorporated by reference is an important part of this
prospectus supplement and the accompanying prospectus, and
information that we file later with the SEC will automatically
update and supersede this information. We incorporate by
reference the documents listed below and any future documents we
file with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until we sell all of the
securities covered by this prospectus supplement and the
accompanying prospectus, provided that information furnished and
not filed by us under any item of any Current Report on
Form 8-K including the related exhibits is not incorporated
by reference.
|
|
|
|
|
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008.
|
|
|
|
The information responsive to Part III of Form 10-K
for the fiscal year ended December 31, 2008 provided in our
Proxy Statement on Schedule 14A filed on March 17,
2009.
|
|
|
|
Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2009, June 30, 2009
and September 30, 2009.
|
|
|
|
Current Reports on
Form 8-K
filed on January 29, 2009, March 26, 2009,
May 26, 2009, August 13, 2009, September 1, 2009,
November 2, 2009, November 10, 2009 and November 16, 2009.
|
|
|
|
The description of the Companys capital stock set forth
under the caption Item 11. Description of
Registrants Securities to be Registered in the
Companys Registration Statement on Form 10 dated
March 10, 1992 as amended by the Companys Form 8
dated May 22, 1992, Form 8 dated June 9, 1992 and
Form 8 dated June 12, 1992.
|
You may request a copy of these documents at no cost by writing
to us at the following address:
Praxair, Inc.
39 Old Ridgebury Road
Danbury, Connecticut
06810-5113
Attn: Assistant Corporate Secretary
Telephone:
(203) 837-2000.
NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying prospectus
contain forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995.
These statements are based on managements reasonable
expectations and assumptions as of the date the statements are
made but involve risks and uncertainties. These risks and
uncertainties include, without limitation: the performance of
stock markets generally; developments in worldwide and national
economies and other international events and circumstances;
changes in foreign currencies and in interest rates; the cost
and availability of electric power, natural gas and other raw
materials; the ability to achieve price increases to offset cost
increases; catastrophic events including natural disasters,
epidemics and acts of war and terrorism; the ability to attract,
hire and retain qualified personnel; the impact of changes in
financial accounting standards; the impact of tax,
environmental, home healthcare and other legislation and
government regulation in jurisdictions in which the Company
operates; the cost and outcomes of investigations, litigation
and regulatory proceedings; continued timely development and
market acceptance of new products and applications; the impact
of competitive products and pricing; future financial and
operating performance of major customers and industries served;
and the effectiveness and speed of integrating new acquisitions
into the business. These risks and uncertainties may cause
actual future results or circumstances to differ materially from
the projections or estimates
S-2
contained in the forward-looking statements. The Company assumes
no obligation to update or provide revisions to any
forward-looking statement in response to changing circumstances.
The above listed risks and uncertainties are further described
in Item 1A (Risk Factors) in the Companys latest
Annual Report on
Form 10-K
filed with the SEC which should be reviewed carefully. Please
consider the Companys forward-looking statements in light
of those risks.
THE
COMPANY
Praxair was founded in 1907 and became an independent publicly
traded company in 1992. Praxair was the first company in the
United States to produce oxygen from air using a cryogenic
process and continues to be a major technological innovator in
the industrial gases industry.
Praxair is the largest industrial gas supplier in North and
South America, is rapidly growing in Asia, and has strong,
well-established businesses in Europe. Praxairs primary
products for its industrial gases business are atmospheric gases
(oxygen, nitrogen, argon, rare gases) and process gases (carbon
dioxide, helium, hydrogen, electronic gases, specialty gases,
acetylene). The Company also designs, engineers and builds
equipment that produces industrial gases for internal use and
external sale. The Companys surface technologies segment,
operated through Praxair Surface Technologies, Inc., supplies
wear-resistant and high-temperature corrosion-resistant metallic
and ceramic coatings and powders. Sales for Praxair were
$10,796 million, $9,402 million and
$8,324 million for 2008, 2007 and 2006, respectively.
Praxair serves approximately 25 industries as diverse as
healthcare and petroleum refining; computer-chip manufacturing
and beverage carbonation; fiber-optics and steel making; and
aerospace, chemicals and water treatment. In 2008, 95% of sales
were generated in four geographic segments (North America,
Europe, South America and Asia) primarily from the sale of
industrial gases with the balance generated from the surface
technologies segment. Praxair provides a competitive advantage
to its customers by continuously developing new products and
applications, which allow them to improve their productivity,
energy efficiency and environmental performance.
The Companys principal offices are located at 39 Old
Ridgebury Road in Danbury, Connecticut
06810-5113
and its telephone number is
(203) 837-2000.
USE OF
PROCEEDS
We anticipate using the proceeds of the offering to repay
short-term debt, including our $500 million Floating Rate
Notes due May 26, 2010, to fund share repurchases under our
share repurchase program and for general corporate purposes.
Prior to their application, the net proceeds may be invested in
short-term investments.
S-3
RATIO OF EARNINGS
TO FIXED CHARGES
AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth our ratio of earnings to fixed
charges and ratio of earnings to fixed charges and preferred
stock dividends for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
|
|
|
|
|
|
Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
Year Ended December 31,
|
|
|
2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
Ratio of Earnings to Fixed Charges(a)
|
|
|
6.7
|
|
|
|
7.0
|
|
|
|
7.6
|
|
|
|
7.6
|
|
|
|
6.6
|
|
|
|
6.1
|
|
Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends(b)
|
|
|
6.7
|
|
|
|
7.0
|
|
|
|
7.6
|
|
|
|
7.6
|
|
|
|
6.6
|
|
|
|
6.0
|
|
|
|
|
(a)
|
|
For the purpose of computing the
ratio of earnings to fixed charges, earnings are comprised of
income from continuing operations of consolidated subsidiaries
before provision for income taxes and adjustment for
non-controlling interests in consolidated subsidiaries or income
or loss from equity investees, less capitalized interest, plus
depreciation of capitalized interest, dividends from companies
accounted for using the equity method, and fixed charges. Fixed
charges are comprised of interest on long-term and short-term
debt plus capitalized interest and rental expense representative
of an interest factor.
|
|
(b)
|
|
For the purpose of computing the
ratio of earnings to fixed charges and preferred stock
dividends, earnings are comprised of income from continuing
operations of consolidated subsidiaries before provision for
income taxes and adjustment for non-controlling interests in
consolidated subsidiaries or income or loss from equity
investees, less capitalized interest, plus depreciation of
capitalized interest, dividends from companies accounted for
using the equity method, and fixed charges as defined in (a).
Fixed charges and preferred stock dividends are comprised of
fixed charges as defined in (a) plus preferred stock
dividend requirements of consolidated subsidiaries.
|
S-4
DESCRIPTION OF
THE NOTES
In this section entitled Description of the Notes,
references to the Company, Praxair,
we, our, or us refers to
Praxair, Inc., as issuer of the notes and not to any of the
subsidiaries of Praxair, Inc.
The following description of the particular terms of the notes
supplements, and to the extent inconsistent therewith
supersedes, the description of the general terms and provisions
of the senior debt securities included in the accompanying
prospectus, to which description reference is hereby made.
The notes will be our unsecured general obligations, will be
issued under an indenture dated as of July 15, 1992 between
Praxair, Inc. and U.S. Bank National Association, as the
ultimate successor trustee to Bank of America, Illinois, will be
issued only in book-entry form and will mature
on , .
The notes will bear interest from January ,
2010 or from the most recent date to which interest has been
paid or provided for, at the rate
of % per year, payable
semi-annually in arrears
on
and ,
commencing
on ,
2010, to the persons in whose names the notes are registered at
the close of business on the
preceding
and
, respectively. The notes will accrue interest on the basis of a
360-day year
consisting of twelve months of 30 days each.
We will issue the notes in registered form without coupons in
denominations of $2,000 and whole multiples of $1,000 in excess
thereof. The notes are subject to defeasance under the
conditions described in the accompanying prospectus, including
the condition that an opinion of counsel be delivered with
respect to the absence of any tax effect of any such defeasance
to holders of the notes.
Upon issuance, the notes will be represented by one or more
global securities that will be deposited with, or on behalf of,
DTC and will be registered in the name of DTC or a nominee of
DTC. See Description of Debt Securities Global
Debt Securities in the accompanying prospectus.
We may from time to time without the consent of the holders of
the notes create and issue further notes having the same terms
and conditions as these notes so that the further issue would be
consolidated and form a single series with these notes.
At November 30, 2009, approximately $4,675 million
aggregate principal amount of senior debt securities were
outstanding under the indenture.
Optional
Redemption
We may redeem the notes at our option, at any time in whole or
from time to time in part, at a redemption price equal to the
greater of (1) the principal amount of the notes being
redeemed plus accrued and unpaid interest to the redemption date
or (2) the Make-Whole Amount for the notes being redeemed.
There is no sinking fund for the notes.
Make-Whole Amount means, as determined by a
Quotation Agent, the sum of the present values of the principal
amount of the notes to be redeemed, together with the scheduled
payments of interest (exclusive of interest to the redemption
date) from the redemption date to the maturity date of the notes
being redeemed, in each case discounted to the redemption date
on a semi-annual basis, assuming a
360-day year
consisting of twelve
30-day
months, at the Adjusted Treasury Rate, plus accrued and unpaid
interest on the principal amount of the notes being redeemed to
the redemption date.
Adjusted Treasury Rate means, with respect to any
redemption date, the sum of (x) either (1) the yield,
under the heading that represents the average for the
immediately preceding week, appearing in the most recent
published statistical release designated H.15 (519)
or any successor publication that is published weekly by the
Board of Governors of the Federal Reserve System and that
establishes yields on actively traded United States Treasury
securities adjusted to the Comparable Treasury Issue (if no
maturity is within three months before or after the remaining
term of the notes being redeemed, yields for the two published
maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Adjusted Treasury Rate shall
be interpolated or extrapolated from such yields on a
straight-line basis, rounded to the nearest month) or
(2) if such release (or any successor release) is not
published during the week preceding the
S-5
calculation date or does not contain such yields, the rate per
year equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Price for such redemption date, in each
case calculated on the third business day preceding the
redemption date, and (y) %.
Comparable Treasury Issue means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term from the redemption
date to the maturity date of the notes being redeemed that would
be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of
notes.
Comparable Treasury Price means, with respect to any
redemption date, if clause (2) of the Adjusted Treasury
Rate is applicable, the average of four, or such lesser number
as is obtained by the indenture trustee, Reference Treasury
Dealer Quotations for such redemption date.
Quotation Agent means the Reference Treasury Dealer
selected by the indenture trustee after consultation with us.
Reference Treasury Dealer means Citigroup Global
Markets Inc., HSBC Securities (USA) Inc. and RBS Securities Inc.
and their respective successors and assigns, and one other
nationally recognized investment banking firm selected by us
that is a primary U.S. Government securities dealer.
Reference Treasury Dealer Quotations means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the indenture trustee, of
the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount,
quoted in writing to the indenture trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the
third business day preceding such redemption date.
Defaults
and Remedies
Clause 1 of the definition of event of default
under the caption Description of the Debt
Securities Defaults and Remedies in the
accompanying prospectus is revised and applicable to this series
of notes as follows:
the Company defaults in any payment of interest on any of
the notes when the same becomes due and payable and the default
continues for a period of 30 days.
Book-Entry
System
We will initially issue the notes in the form of one or more
global notes (the Global Notes). The Global Notes
will be deposited with, or on behalf of, the Depository
Trust Company (DTC) and registered in the name
of DTC or its nominee. Except as set forth below, the Global
Notes may be transferred, in whole and not in part, only to DTC
or another nominee of DTC. A holder may hold beneficial
interests in the Global Notes directly through DTC if such
holder has an account with DTC or indirectly though
organizations which have accounts with DTC, including Euroclear
and Clearstream.
Investors may hold interests in the notes outside the United
States through Euroclear or Clearstream if they are participants
in those systems, or indirectly through organizations which are
participants in those systems. Euroclear and Clearstream will
hold interests on behalf of their participants through
customers securities accounts in Euroclears and
Clearstreams names on the books of their respective
depositaries which in turn will hold such positions in
customers securities accounts in the names of the nominees
of the depositaries on the books of DTC. All securities in
Euroclear or Clearstream are held on a fungible basis without
attribution of specific certificates to specific securities
clearance accounts.
S-6
UNDERWRITING
Under the terms and subject to the conditions set forth in an
underwriting agreement dated the date hereof, the underwriters
named below have severally agreed to purchase, and we have
agreed to sell to them, severally, the respective principal
amounts of notes set forth opposite their names below:
|
|
|
|
|
|
|
Principal
|
|
Underwriters
|
|
Amount of Notes
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
|
|
HSBC Securities (USA) Inc.
|
|
|
|
|
RBS Securities Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
|
|
|
|
|
|
|
The underwriting agreement provides that the obligation of the
several underwriters to pay for and accept delivery of the notes
is subject to the approval of certain legal matters by their
counsel and to certain other conditions. The underwriters are
committed to purchase all of the notes if any are purchased.
The underwriters propose to offer the notes initially to the
public at the public offering price shown on the cover page
hereof and to selling group members at that price less a selling
concession of % of the principal
amount of the notes. The underwriters and selling group members
may reallow a discount of % of the
principal amount of the notes on sales to other dealers. After
the initial offering of the notes, the underwriters may change
the offering price and other selling terms.
We estimate that our expenses for this offering will be
approximately $250,000.
We have agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act of
1933, and to contribute to payments the underwriters may be
required to make in respect of any of these liabilities.
The notes are a new issue of securities with no established
trading market. We do not intend to apply for listing of the
notes on a national securities exchange. We have been advised by
the underwriters that they currently intend to make a secondary
market in the notes, as permitted by applicable laws and
regulations. The underwriters are not obligated, however, to
make a market in the notes and any such secondary market making
may be discontinued at any time without notice at the sole
discretion of the underwriters. Accordingly, no assurance can be
given as to the liquidity of, or trading market for, the notes.
In connection with the offering of the notes, the underwriters
may engage in transactions that stabilize, maintain or otherwise
affect the price of the notes. Specifically, the underwriters
may overallot in connection with the offering of the notes,
creating a syndicate short position. In addition, the
underwriters may bid for, and purchase notes in the open market
to cover syndicate short positions or to stabilize the price of
the notes. Finally, the underwriting syndicate may reclaim
selling concessions allowed for distributing the notes in the
offering of the notes, if the syndicate repurchases previously
distributed notes in syndicate covering transactions,
stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the notes above
independent market levels. The underwriters are not required to
engage in any of these activities, and may end any of them at
any time without notice.
In the ordinary course of their respective businesses, the
underwriters and their affiliates have engaged, are engaging and
may in the future engage, in commercial banking
and/or
investment banking transactions with us and our affiliates for
which they have received, are receiving and will receive
customary compensation, including as arrangers
and/or
lenders under credit facilities for us and our subsidiaries.
S-7
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal
Control over Financial Reporting) incorporated in this
prospectus supplement by reference to the Annual Report on
Form 10-K
for the year ended December 31, 2008 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
S-8
Prospectus
PRAXAIR, INC.
Common Stock
Preferred Stock
and
Debt Securities
We may offer, from time to time, in one or more series:
|
|
|
|
|
shares of our common stock;
|
|
|
|
shares of our preferred stock;
|
|
|
|
unsecured senior debt securities; and
|
|
|
|
unsecured subordinated debt securities.
|
The securities:
|
|
|
|
|
will be offered at prices and on terms to be set forth in one or
more prospectus supplements;
|
|
|
|
may be denominated in U.S. dollars or in other currencies
or currency units;
|
|
|
|
may be offered separately or together with other securities as
units, or in separate series;
|
|
|
|
may be issued upon conversion of, or in exchange for, other
securities; and
|
|
|
|
may be listed on a national securities exchange, if specified in
the applicable prospectus supplement.
|
Our common stock is listed on the New York Stock Exchange under
the symbol PX.
Investing in these securities
involves risk. See Risk Factors on
page 2 of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The securities may be sold from time to time directly, through
agents or through underwriters
and/or
dealers. If any agent of the issuer or any underwriter is
involved in the sale of the securities, the name of such agent
or underwriter and any applicable commission or discount will be
set forth in the accompanying prospectus supplement.
This prospectus may not be used unless accompanied by a
prospectus supplement.
The date of this prospectus is November 9, 2009.
TABLE OF
CONTENTS
Prospectus
|
|
|
|
|
|
Page
|
|
|
|
|
1
|
|
|
|
1
|
|
|
|
2
|
|
|
|
2
|
|
|
|
2
|
|
|
|
3
|
|
|
|
4
|
|
|
|
6
|
|
|
|
17
|
|
|
|
18
|
|
|
|
19
|
|
|
|
19
|
|
|
|
19
|
-i-
ABOUT
THIS PROSPECTUS
This prospectus is part of a shelf registration
statement filed with the United States Securities and Exchange
Commission, or the SEC, by us. By using a shelf registration
statement, we may sell an unlimited aggregate principal amount
of any combination of the securities described in this
prospectus from time to time and in one or more offerings. This
prospectus only provides you with a general description of the
securities that we may offer. Each time we sell securities, we
will provide a supplement to this prospectus that contains
specific information about the terms of the securities. The
prospectus supplement may also add, update or change information
contained in this prospectus. Before purchasing any securities,
you should carefully read both this prospectus and any
prospectus supplement, together with the additional information
described under the headings Where You Can Find More
Information and Incorporation of Certain Information
by Reference.
You should rely only on the information incorporated by
reference or provided in this prospectus or any prospectus
supplement. We have not authorized anyone else to provide you
with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. We are not making an offer of the securities in any
jurisdiction where the offer is not permitted. You should not
assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the
front of those documents.
References to we, us, our,
the Company and Praxair are to Praxair,
Inc. and its subsidiaries unless the context requires otherwise.
NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus (including the documents incorporated herein by
reference) contains and any prospectus supplement (including the
documents incorporated therein by reference) will contain
forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These
statements are based on managements reasonable
expectations and assumptions as of the date the statements are
made but involve risks and uncertainties. These risks and
uncertainties include, without limitation: the performance of
stock markets generally; developments in worldwide and national
economies and other international events and circumstances;
changes in foreign currencies and in interest rates; the cost
and availability of electric power, natural gas and other raw
materials; the ability to achieve price increases to offset cost
increases; catastrophic events including natural disasters,
epidemics and acts of war and terrorism; the ability to attract,
hire and retain qualified personnel; the impact of changes in
financial accounting standards; the impact of tax,
environmental, home healthcare and other legislation and
government regulation in jurisdictions in which the Company
operates; the cost and outcomes of investigations, litigation
and regulatory proceedings; continued timely development and
market acceptance of new products and applications; the impact
of competitive products and pricing; future financial and
operating performance of major customers and industries served;
and the effectiveness and speed of integrating new acquisitions
into the business. These risks and uncertainties may cause
actual future results or circumstances to differ materially from
the projections or estimates contained in the forward-looking
statements. The Company assumes no obligation to update or
provide revisions to any forward-looking statement in response
to changing circumstances. The above listed risks and
uncertainties are further described in Item 1A (Risk
Factors) in the Companys latest Annual Report on
Form 10-K
filed with the SEC which should be reviewed carefully. Please
consider the Companys forward-looking statements in light
of those risks. The Company is under no duty and does not intend
to update any of the forward-looking statements after the date
of this prospectus or to conform our prior statements to actual
results.
-1-
THE
COMPANY
Praxair was founded in 1907 and became an independent publicly
traded company in 1992. Praxair was the first company in the
United States to produce oxygen from air using a cryogenic
process and continues to be a major technological innovator in
the industrial gases industry.
Praxair is the largest industrial gases supplier in North and
South America, is rapidly growing in Asia, and has strong,
well-established businesses in Europe. Praxairs primary
products for its industrial gases business are atmospheric gases
(oxygen, nitrogen, argon, rare gases) and process gases (carbon
dioxide, helium, hydrogen, electronic gases, specialty gases,
acetylene). The Company also designs, engineers and builds
equipment that produces industrial gases for internal use and
external sale. The Companys surface technology segment,
operated through Praxair Surface Technologies, Inc., supplies
wear-resistant and
high-temperature
corrosion-resistant metallic and ceramic coatings and powders.
Sales for Praxair were $10,796 million,
$9,402 million, and $8,324 million for 2008, 2007, and
2006, respectively. For the
nine-month
periods ended September 30, 2009 and 2008, sales for the
Company were $6,549 million and $8,393 million,
respectively.
Praxair serves approximately 25 industries as diverse as
healthcare and petroleum refining; computer-chip manufacturing
and beverage carbonation; fiber-optics and steel making; and
aerospace, chemicals and water treatment. In 2008, 95% of sales
were generated in four geographic segments (North America,
Europe, South America and Asia) primarily from the sale of
industrial gases with the balance generated from the surface
technologies segment. Praxair provides a competitive advantage
to its customer base by continually developing new products and
applications, which allow them to improve their productivity,
energy efficiency and environmental performance.
The Companys principal offices are located at 39 Old
Ridgebury Road in Danbury, Connecticut
06810-5113
and our telephone number is
(203) 837-2000.
RISK
FACTORS
Our business is subject to uncertainties and risks. You should
carefully consider and evaluate all of the information included
and incorporated by reference in this prospectus, including the
risk factors incorporated by reference from our most recent
annual report on
Form 10-K,
as updated by our quarterly reports on
Form 10-Q
and other SEC filings filed after such annual report. It is
possible that our business, financial condition, liquidity or
results of operations could be materially adversely affected by
any of these risks.
USE OF
PROCEEDS
Except as otherwise described in the applicable prospectus
supplement, we will use the net proceeds from the sale or sales
of our securities for general corporate purposes, which may
include, without limitation, the repayment of outstanding
indebtedness, repurchases of our common stock, working capital
increases, capital expenditures and acquisitions. Prior to their
application, the proceeds may be invested in short-term
investments. Reference is made to our financial statements
incorporated by reference herein for a description of the terms
of our outstanding indebtedness.
-2-
RATIO OF
EARNINGS TO FIXED CHARGES
AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth our ratio of earnings to fixed
charges and ratio of earnings to fixed charges and preferred
stock dividends for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
|
|
|
|
|
|
Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
Year Ended December 31,
|
|
|
2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
Ratio of Earnings to Fixed Charges(a)
|
|
|
6.7
|
|
|
|
7.0
|
|
|
|
7.6
|
|
|
|
7.6
|
|
|
|
6.6
|
|
|
|
6.1
|
|
Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends(b)
|
|
|
6.7
|
|
|
|
7.0
|
|
|
|
7.6
|
|
|
|
7.6
|
|
|
|
6.6
|
|
|
|
6.0
|
|
|
|
|
(a) |
|
For the purpose of computing the ratio of earnings to fixed
charges, earnings are comprised of income from continuing
operations of consolidated subsidiaries before provision for
income taxes and adjustment for non-controlling interests in
consolidated subsidiaries or income or loss from equity
investees, less capitalized interest, plus depreciation of
capitalized interest, dividends from companies accounted for
using the equity method, and fixed charges. Fixed charges are
comprised of interest on long-term and short-term debt plus
capitalized interest and rental expense representative of an
interest factor. |
|
(b) |
|
For the purpose of computing the ratio of earnings to fixed
charges and preferred stock dividends, earnings are comprised of
income from continuing operations of consolidated subsidiaries
before provision for income taxes and adjustment for
non-controlling interests in consolidated subsidiaries or income
or loss from equity investees, less capitalized interest, plus
depreciation of capitalized interest, dividends from companies
accounted for using the equity method, and fixed charges as
defined in (a). Fixed charges and preferred stock dividends are
comprised of fixed charges as defined in (a) plus preferred
stock dividend requirements of consolidated subsidiaries. |
-3-
DESCRIPTION
OF CAPITAL STOCK
Authorized
Capital Stock
Under the Restated Certificate of Incorporation of the Company
the total number of shares of all classes of stock that the
Company has authority to issue is 825,000,000, of which
25,000,000 may be shares of preferred stock, par value $.01 per
share, and 800,000,000 may be shares of common stock, par value
$.01 per share. As of September 30, 2009,
378,698,584 shares of our common stock were issued (of
which 306,809,303 shares were outstanding and
71,889,281 shares were held in treasury) and
46,166,995 shares reserved for issuance pursuant to benefit
plans.
Common
Stock
Holders of the Companys common stock are entitled to
receive ratably dividends, if any, subject to the prior rights
of holders of outstanding shares of preferred stock, as are
declared by the board of directors of the Company out of the
funds legally available for the payment of dividends. Except as
otherwise provided by law, each holder of common stock is
entitled to one vote per share of common stock on each matter
submitted to a vote of a meeting of stockholders. The common
stock does not have cumulative voting rights in the election of
directors.
In the event of any liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary, after all
liabilities and liquidation preference, if any, of preferred
stock have been paid in full, the holders of the Companys
common stock are entitled to receive any remaining assets of the
Company.
The Companys common stock has no preemptive or conversion
rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to our common stock.
The Company is authorized to issue additional shares of common
stock without further stockholder approval (except as may be
required by applicable law or stock exchange regulations). With
respect to the issuance of common shares of any additional
series, the board of directors of the Company is authorized to
determine, without any further action by the holders of the
Companys common stock, the dividend rights, dividend rate,
conversion rights, voting rights and rights and terms of
redemption, as well as the number of shares constituting such
series and the designation thereof. Should the board of
directors of the Company elect to exercise its authority, the
rights and privileges of holders of the Companys common
stock could be made subject to rights and privileges of any such
other series of common stock. The Company has no present plans
to issue any common stock of a series other than the
Companys common stock currently issued and outstanding.
The transfer agent and registrar for the shares of our common
stock is Registrar and Transfer Company, 10 Commerce Drive,
Cranford, New Jersey
07016-3572.
Preferred
Stock
The Companys board of directors may issue up to
25,000,000 shares of preferred stock in one or more series
and, subject to the Delaware corporation law, may:
|
|
|
|
|
fix the rights, preferences, privileges and restrictions of the
preferred stock;
|
|
|
|
fix the number of shares and designation of any series of
preferred stock; and
|
|
|
|
increase or decrease the number of shares of any series of
preferred stock but not below the number of outstanding shares.
|
The Companys board of directors has the power to issue our
preferred stock with voting and conversion rights that could
negatively affect the voting power or other rights of our common
stockholders, and the board of directors could take that action
without stockholder approval. The issuance of our preferred
stock could delay or prevent a change in control of the Company.
At September 30, 2009, no shares of our preferred stock
were outstanding.
-4-
If the Company offers any series of preferred stock, whether
separately, or together with, or upon the conversion of, or in
exchange for, other securities, certain terms of that series of
preferred stock will be described in the applicable prospectus
supplement, including, without limitation, the following:
|
|
|
|
|
the designation;
|
|
|
|
the number of authorized shares of the series in question;
|
|
|
|
voting rights, if any;
|
|
|
|
the dividend rate, period
and/or
payment dates or method of calculation;
|
|
|
|
the relative ranking and preferences of the preferred stock as
to dividend rights and rights upon the liquidation, dissolution
or winding up of the Companys affairs;
|
|
|
|
any limitations on the issuance of any class or series of
preferred stock ranking senior to or on parity with the class or
series of preferred stock as to dividend rights and rights upon
liquidation, dissolution or winding up of the affairs of the
Company;
|
|
|
|
the terms and conditions, if any, upon which the preferred stock
will be convertible into or exchangeable for other securities;
|
|
|
|
any redemption provisions;
|
|
|
|
any sinking fund provisions; and
|
|
|
|
any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
|
No
Preemptive Rights
No holder of any stock of any class of the Company has any
preemptive right to subscribe for any securities of any kind or
class.
-5-
DESCRIPTION
OF DEBT SECURITIES
Senior Debt Securities may be issued either separately, or
together with, or upon the conversion of, or in exchange for,
other securities, from time to time in one or more series, under
an Indenture dated July 15, 1992 (the Senior
Indenture) between the Company and U.S. Bank National
Association, as trustee (the Senior Trustee), which
is an exhibit to the Registration Statement of which this
prospectus is a part.
Subordinated Debt Securities may be issued either separately, or
together with, or upon the conversion of, or in exchange for,
other securities, from time to time in series under an indenture
(the Subordinated Indenture) between the Company and
a trustee to be identified in the related prospectus supplement
(the Subordinated Trustee). The Subordinated
Indenture is an exhibit to the Registration Statement of which
this prospectus is a part. The Senior Indenture and the
Subordinated Indenture are sometimes referred to collectively as
the Indentures, and the Senior Trustee and the
Subordinated Trustee are sometimes referred to collectively as
the Debt Trustees. The following statements under
this caption are summaries of certain provisions contained or,
in the case of the Subordinated Indenture, to be contained in
the Indentures, do not purport to be complete and are qualified
in their entirety by reference to the Indentures, including the
definitions therein of certain terms. Capitalized terms used
herein and not defined shall have the meanings assigned to them
in the related Indenture. The particular terms of the Debt
Securities and any variations from such general provisions
applicable to any series of Debt Securities will be set forth in
the prospectus supplement applicable to such series.
The Debt Securities will be obligations exclusively of Praxair,
Inc. Our subsidiaries have no obligation to pay any amounts due
on the Debt Securities or, subject to existing or future
contractual obligations between us and our subsidiaries, to
provide us with funds for our payment obligations, whether by
dividends, distributions, loans or other payments. Our right to
receive any assets of any of our subsidiaries upon liquidation
or reorganization, and, as a result, the right of the holders of
the notes to participate in those assets, will be effectively
subordinated to the claims of that subsidiarys creditors,
including trade creditors and preferred stockholders, if any.
At September 30, 2009, approximately $4,275 million
principal amount of Senior Debt Securities were outstanding
under the Senior Indenture and there were no Subordinated Debt
Securities outstanding under the Subordinated Indenture.
General
Each Indenture provides or, in the case of the Subordinated
Indenture, will provide for the issuance of Debt Securities in
one or more series with the same or various maturities. Neither
Indenture limits the amount of Debt Securities that can be
issued thereunder and each provides that the Debt Securities may
be issued in series up to the aggregate principal amount which
may be authorized from time to time by the Company. Unless
otherwise provided, a series may be reopened for issuance of
additional debt securities of such series. The Debt Securities
will be unsecured.
Reference is made to the prospectus supplement for the following
terms, if applicable, of the Debt Securities offered thereby:
(1) the designation, aggregate principal amount, currency
or composite currency and denominations;
(2) the price at which such Debt Securities will be issued
and, if an index formula or other method is used, the method for
determining amounts of principal or interest;
(3) the maturity date and other dates, if any, on which
principal will be payable;
(4) the interest rate (which may be fixed or variable), if
any;
(5) the date or dates from which interest will accrue and
on which interest will be payable, and the record dates for the
payment of interest;
(6) the manner of paying principal or interest;
-6-
(7) the place or places where principal and interest will
be payable;
(8) the terms of any mandatory or optional redemption by
the Company;
(9) the terms, if any, upon which the debt securities may
be convertible into or exchangeable for other securities;
(10) the terms of any redemption at the option of holders;
(11) whether such Debt Securities are to be issuable as
registered Debt Securities, bearer Debt Securities, or both, and
whether and upon what terms any registered Debt Securities may
be exchanged for bearer Debt Securities and vice versa;
(12) whether such Debt Securities are to be represented in
whole or in part by a Debt Security in global form and, if so,
the identity of the depositary for any global Debt Security;
(13) any tax indemnity provisions;
(14) if the Debt Securities provide that payments of
principal or interest may be made in a currency other than that
in which Debt Securities are denominated, the manner for
determining such payments;
(15) the portion of principal payable upon acceleration of
a Discounted Debt Security (as defined below);
(16) whether and upon what terms Debt Securities may be
defeased;
(17) any events of default or restrictive covenants in
addition to or in lieu of those set forth in the Indentures;
(18) provisions for electronic issuance of Debt Securities
or for Debt Securities in uncertificated form; and
(19) any additional provisions or other special terms not
inconsistent with the provisions of the Indentures, including
any terms that may be required or advisable under United States
or other applicable laws or regulations, or advisable in
connection with the marketing of the Debt Securities.
If the principal of, premium, if any, or interest on Debt
Securities of any series are payable in a foreign or composite
currency, any material risks relating to an investment in such
Debt Securities will be described in the prospectus supplement
relating to that series. If an index formula or other method is
used for determining amounts of principal or interest, the
prospectus supplement relating to the indexed securities will
also describe any additional tax consequences or other special
considerations applicable to this type of debt securities.
Debt Securities of any series may be issued as registered Debt
Securities, bearer Debt Securities or uncertificated Debt
securities, as specified in the terms of the series. Unless
otherwise indicated in the applicable prospectus supplement,
registered Debt Securities will be issued in denominations of
$1,000 and whole multiples thereof and bearer Debt Securities
will be issued in denominations of $5,000 and whole multiples
thereof. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global Debt Securities
that will be deposited with, or on behalf of, a depositary
identified in the prospectus supplement relating to the series.
Unless otherwise indicated in the prospectus supplement relating
to a series, the terms of the depositary arrangement with
respect to any Debt Securities of a series specified in the
prospectus supplement as being represented by global Debt
Securities will be as set forth below under Global Debt
Securities.
In connection with its original issuance, no bearer Debt
Security will be offered, sold, resold, or mailed or otherwise
delivered to any location in the United States and a bearer Debt
Security in definitive form may be delivered in connection with
its original issuance only if the person entitled to receive the
bearer Debt Security furnishes certification as described in
United States Treasury regulation
section 1.163-5(c)(2)(i)(D)(3).
If there is a change in the relevant provisions or
interpretation of United States laws, the foregoing restrictions
will not apply to a series if the Company determines that such
provisions no longer apply to the series or that
-7-
failure to so comply would not have an adverse tax effect on the
Company or on holders or cause the series to be treated as
registration-required obligations under United
States law.
For purposes of this prospectus, unless otherwise indicated,
United States means the United States of America
(including the States and the District of Columbia), its
territories and possessions and all other areas subject to its
jurisdiction. United States person means a citizen
or resident of the United States, any corporation, partnership
or other entity created or organized in or under the laws of the
United States or a political subdivision thereof or any estate
or trust the income of which is subject to United States federal
income taxation regardless of its source. Any special United
States federal income tax considerations applicable to bearer
Debt Securities will be described in the prospectus supplement
relating thereto.
To the extent set forth in the applicable prospectus supplement,
except in special circumstances set forth in the applicable
Indenture, principal and interest on bearer Debt Securities will
be payable only upon surrender of bearer Debt Securities and
coupons at a paying agency of the Company located outside of the
United States. During any period thereafter for which it is
necessary in order to conform to United States tax law or
regulations, the Company will maintain a paying agent outside
the United States to which the bearer Debt Securities and
coupons may be presented for payment and will provide the
necessary funds therefor to the paying agent upon reasonable
notice.
Registration of transfer of registered Debt Securities may be
requested upon surrender thereof at any agency of the Company
maintained for that purpose and upon fulfillment of all other
requirements of the agent. Bearer Debt Securities and the
coupons related thereto will be transferable by delivery.
Debt Securities may be issued under the Indentures as Discounted
Debt Securities to be offered and sold at a discount from the
principal amount thereof. Special United States federal income
tax and other considerations applicable thereto will be
described in the applicable prospectus supplement relating to
such Discounted Debt Securities. Discounted Debt
Security means a Debt Security where the amount of
principal due upon acceleration is less than the stated
principal amount.
We may issue debt securities other than debt securities
described in this prospectus. There is no requirement that any
other debt securities that we issue be issued under the
Indentures. Thus, any other debt securities that we issue may be
issued under other indentures or documentation, containing
provisions different from those included in the Indentures or
applicable to one or more issues of debt securities described in
this prospectus.
Ranking
of Debt Securities
The Senior Debt Securities will be unsecured and will rank on a
parity with other unsecured and unsubordinated debt of the
Company.
At September 30, 2009, the Company had outstanding
approximately $4,727 million in long-term debt (net of
current maturities) consisting of Senior Indebtedness (as
defined below).
The obligations of the Company pursuant to any Subordinated Debt
Securities will be subordinate in right of payment to all Senior
Indebtedness of the Company. Senior Indebtedness of
the Company is defined to mean the principal of (and premium, if
any) and interest on (a) any and all indebtedness and
obligations of the Company (including indebtedness of others
guaranteed by the Company) other than the Subordinated Debt
Securities, whether or not contingent and whether outstanding on
the date of the Subordinated Indenture or thereafter created,
incurred or assumed, which (i) are for money borrowed;
(ii) are evidenced by any bond, note, debenture or similar
instrument; (iii) represent the unpaid balance on the
purchase price of any property, business, or asset of any kind;
(iv) are obligations of the Company as lessee under any and
all leases of property, equipment or other assets required to be
capitalized on the balance sheet of the lessee under generally
accepted accounting principles; (v) are reimbursement
obligations of the Company with respect to letters of credit; or
(vi) are obligations of the Company with respect to
interest rate swap obligations and foreign exchange agreements;
and (b) any deferrals, amendments, renewals, extensions,
modifications and refundings of any indebtedness or obligations
of the types referred to above; provided that Senior
Indebtedness shall not include (i) the Subordinated Debt
Securities; (ii) any indebtedness or obligation of the
Company
-8-
which, by its express terms or the express terms of the
instrument creating or evidencing it, is not superior in right
of payment to the Subordinated Debt Securities; or
(iii) any indebtedness or obligation incurred by the
Company in connection with the purchase of assets, materials or
services in the ordinary course of business and which
constitutes a trade payable.
The Subordinated Indenture will not contain any limitation on
the amount of Senior Indebtedness which may be hereafter
incurred by the Company.
The Subordinated Indenture will provide that where notice of
certain defaults in respect of Senior Indebtedness has been
given to the Company, no payment with respect to the principal
of or interest on the Subordinated Debt Securities will be made
by the Company unless and until such default has been cured or
waived. Upon any payment or distribution of the Companys
assets to creditors of the Company in a liquidation or
dissolution of the Company, or in a reorganization, bankruptcy,
insolvency, receivership or similar proceeding relating to the
Company or its property, whether voluntary or involuntary, the
holders of Senior Indebtedness will first be entitled to receive
payment in full of all amounts due thereon before the holders of
the Subordinated Debt Securities will be entitled to receive any
payment upon the principal of or premium, if any, or interest on
the Subordinated Debt Securities. By reason of such
subordination, in the event of insolvency of the Company,
holders of Senior Indebtedness of the Company may receive more,
ratably, and holders of the Subordinated Debt Securities may
receive less, ratably, than the other creditors of the Company.
Such subordination will not prevent the occurrence of any event
of default in respect of the Subordinated Debt Securities.
Certain
Covenants
The Senior Indenture contains, among others, the covenants
summarized below, which will be applicable (unless waived or
amended) so long as any of the Senior Debt Securities are
outstanding, unless otherwise stated in the applicable
prospectus supplement.
The Debt Securities will not be secured by any properties or
assets and will represent unsecured debt of the Company. Because
secured debt ranks ahead of unsecured debt with respect to the
assets securing such secured debt, the limitation on liens and
the limitation on sale-leaseback transactions place some
restrictions on the Companys ability to incur additional
secured debt or its equivalent when the asset securing the debt
is a material manufacturing facility in the United States. The
limitations are subject to a number of qualifications and
exceptions described below. There can be no assurance that a
facility subject to the limitations at any time will continue to
be subject to those limitations at a later time.
The limited covenants in the Indentures do not limit the
Companys ability to incur unsecured debt, to make
dividends or other distributions or repurchase shares or make
investments. In addition, although the Indentures contain
limitations on our ability to incur secured debt and our
restricted subsidiaries ability to incur debt, such
limitations are subject to significant exceptions. The Debt
Securities will be effectively subordinated to any secured
indebtedness of the Company to the extent of the value of the
assets securing such indebtedness. Furthermore, the Indentures
do not provide protections in the event of a change in control.
We could engage in many types of transactions, such as
acquisitions, mergers, refinancings or recapitalizations that
could substantially affect our ownership, capital structure and
the value of the Debt Securities.
Definitions
Attributable Debt for a lease means, as of the date
of determination, the present value of net rent for the
remaining term of the lease. Rent shall be discounted to present
value at a discount rate that is compounded semi-annually. The
discount rate shall be 10% per annum or, if the Company elects,
the discount rate shall be equal to the weighted average Yield
to Maturity of the Senior Debt Securities under the Senior
Indenture. Such average shall be weighted by the principal
amount of the Senior Debt Securities of each series or, in the
case of Discounted Senior Debt Securities, the amount of
principal that would be due as of the date of determination if
payment of the Senior Debt Securities were accelerated on that
date.
-9-
Rent is the lesser of (a) rent for the remaining term of
the lease assuming it is not terminated or (b) rent from
the date of determination until the first possible termination
date plus the termination payment then due, if any. The
remaining term of a lease includes any period for which the
lease has been extended. Rent does not include (1) amounts
due for maintenance, repairs, utilities, insurance, taxes,
assessments and similar charges or (2) contingent rent,
such as that based on sales. Rent may be reduced by the
discounted present value of the rent that any sublessee must pay
from the date of determination for all or part of the same
property. If the net rent on a lease is not definitely
determinable, the Company may estimate it in any reasonable
manner.
Consolidated Net Tangible Assets means total assets
less (a) total current liabilities (excluding short-term
Debt and payments due within one year on long-term Debt) and
(b) goodwill, as reflected in the Companys most
recent consolidated balance sheet preceding the date of a
determination under clause (9) of the Limitation on
Liens covenant of the Senior Indenture.
Debt means any debt for borrowed money or any
guarantee of such a debt.
Lien means any mortgage, pledge, security interest
or lien.
Long-Term Debt means Debt that by its terms matures
on a date more than 12 months after the date it was created
or Debt that the obligor may extend or renew without the
obligees consent to a date more than 12 months after
the date the Debt was created.
Principal Property means (i) any manufacturing
facility, whether now or hereafter owned, located in the United
States (excluding territories and possessions), except any such
facility that in the opinion of the board of directors of the
Company or any authorized committee of the board is not of
material importance to the total business conducted by the
Company and its consolidated Subsidiaries, and (ii) any
shares of stock of a Restricted Subsidiary.
At December 31, 2008, our Principal Properties were our
production facilities in Northern Indiana (air
separation/hydrogen/carbon dioxide), Houston, Texas (air
separation) and Detroit, Michigan (air separation/hydrogen),
and, to the extent owned by us, Gulf Coast (hydrogen/carbon
monoxide) and Louisiana (hydrogen/carbon monoxide).
Restricted Subsidiary means a Wholly-Owned
Subsidiary that has substantially all of its assets located in
the United States (excluding territories or possessions) or
Puerto Rico and owns a Principal Property.
Sale-Leaseback Transaction means an arrangement
pursuant to which the Company or a Restricted Subsidiary now
owns or hereafter acquires a Principal Property, transfers it to
a person, and leases it back from the person.
Subsidiary means a corporation a majority of whose
Voting Stock is owned by the Company or a Subsidiary.
Voting Stock means capital stock having voting power
under ordinary circumstances to elect directors.
Wholly-Owned Subsidiary means a corporation all of
whose Voting Stock is owned by the Company or a Wholly-Owned
Subsidiary, the accounts of which are consolidated with those of
the Company in its consolidated financial statements.
Yield to Maturity means the yield to maturity on a
Security at the time of its issuance or at the most recent
determination of interest on the Security.
Limitation
on Liens
The Company will not, and will not permit any Restricted
Subsidiary to, incur a Lien on Principal Property to secure a
Debt unless:
1. the Lien equally and ratably secures the Senior Debt
Securities and the Debt. The Lien may equally and ratably secure
the Senior Debt Securities and any other obligation of the
Company or a
-10-
Subsidiary. The Lien may not secure an obligation of the Company
that is subordinated to the Senior Debt Securities;
2. the Lien secures Debt incurred to finance all or some of
the purchase price or the cost of construction or improvement of
property of the Company or a Restricted Subsidiary. The Lien may
not extend to any other Principal Property owned by the Company
or a Restricted Subsidiary at the time the Lien is incurred.
However, in the case of any construction or improvement, the
Lien may extend to unimproved real property used for the
construction or improvement. The Debt secured by the Lien may
not be incurred more than one year after the later of the
(a) acquisition, (b) completion of construction or
improvement or (c) commencement of full operation, of the
property subject to the Lien;
3. the Lien is on property of a corporation at the time the
corporation merges into or consolidates with the Company or a
Restricted Subsidiary;
4. the Lien is on property at the time the Company or a
Restricted Subsidiary acquires the property;
5. the Lien is on property of a corporation at the time the
corporation becomes a Restricted Subsidiary;
6. the Lien secures Debt of a Restricted Subsidiary owing
to the Company or another Restricted Subsidiary;
7. the Lien is in favor of a government or governmental
entity and secures (a) payments pursuant to a contract or
statute or (b) Debt incurred to finance all or some of the
purchase price or cost of construction or improvement of the
property subject to the Lien;
8. the Lien extends, renews or replaces in whole or in part
a Lien (existing Lien) permitted by any of
clauses (1) through (7). The Lien may not extend beyond
(a) the property subject to the existing Lien and
(b) improvements and construction on such property.
However, the Lien may extend to property that at the time is not
a Principal Property. The Debt secured by the Lien may not
exceed the Debt secured at the time by the existing Lien unless
the existing Lien or a predecessor Lien was incurred under
clause (1) or (6); or
9. the Debt plus all other Debt secured by Liens on
Principal Property at the time does not exceed 10% of
Consolidated Net Tangible Assets. However, the following Debt
shall be excluded from all other Debt in the determination:
(a) Debt secured by a Lien permitted by any of
clauses (1) through (8) and (b) Debt secured by a
Lien incurred prior to the date of the Senior Indenture that
would have been permitted by any of those clauses if the Senior
Indenture had been in effect at the time the Lien was incurred.
Attributable Debt for any lease permitted by clause (4) of
the Limitation on Sale and Leaseback covenant of the
Senior Indenture must be included in the determination and
treated as Debt secured by a Lien on Principal Property not
otherwise permitted by any of clauses (1) through (8).
In general, clause (9) above, sometimes called a
basket clause, permits Liens to be incurred that are
not permitted by any of the exceptions enumerated in
clauses (1) through (8) above if the Debt secured by
all such additional Liens does not exceed 10% of Consolidated
Net Tangible Assets at the time.
At September 30, 2009, Consolidated Net Tangible Assets
were approximately $10,587 million. At that date,
additional Liens securing Debt equal to 10% of that amount could
have been incurred under clause (9).
Limitation
on Sale and Leaseback
The Company will not, and will not permit any Restricted
Subsidiary to, enter into a Sale-Leaseback Transaction unless:
1. the lease has a term of three years or less;
2. the lease is between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries;
-11-
3. the Company or a Restricted Subsidiary under
clauses (2) through (8) of the Limitation on
Liens covenant could create a Lien on the property to
secure Debt at least equal in amount to the Attributable Debt
for the lease;
4. the Company or a Restricted Subsidiary under
clause (9) of the Limitation on Liens covenant
could create a Lien on the property to secure Debt at least
equal in amount to the Attributable Debt for the lease; or
5. the Company or a Restricted Subsidiary within
180 days of the effective date of the lease retires
Long-Term Debt of the Company or a Restricted Subsidiary at
least equal in amount to the Attributable Debt for the lease. A
Debt is retired when it is paid or cancelled. However, the
Company or a Restricted Subsidiary may not receive credit for
retirement of: Debt of the Company that is subordinated to the
Senior Debt Securities; or Debt, if paid in cash, that is owned
by the Company or a Restricted Subsidiary.
In clauses (3) and (4) above, Sale-Leaseback
Transactions and Liens are treated as equivalents. Thus, if the
Company or a Restricted Subsidiary could create a Lien on a
property, it may enter into a Sale-Leaseback Transaction to the
same extent.
Limitation
on Debt of Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary to incur
any Debt unless:
1. such Restricted Subsidiary could create Debt secured by
Liens in accordance with the Limitation on Liens
covenant in an amount equal to such Debt, without equally and
ratably securing the Senior Debt Securities;
2. the Debt is owed to the Company or another Restricted
Subsidiary;
3. the Debt is Debt of a corporation at the time the
corporation becomes a Restricted Subsidiary;
4. the Debt is Debt of a corporation at the time the
corporation merges into or consolidates with a Restricted
Subsidiary or at the time of a sale, lease or other disposition
of its properties as an entirety or substantially as an entirety
to a Restricted Subsidiary;
5. the Debt is incurred to finance all or some of the
purchase price or the cost of construction or improvement of
property of the Restricted Subsidiary. The Debt may not be
incurred more than one year after the later of the
(a) acquisition, (b) completion of construction or
improvement or (c) commencement of full operation, of the
property;
6. the Debt is incurred for the purpose of extending,
renewing or replacing in whole or in part Debt permitted by
any of clauses (1) through (5); or
7. the Debt plus all other Debt of Restricted Subsidiaries
at the time does not exceed 10% of Consolidated Net Tangible
Assets. However, the following Debt shall be excluded from all
other Debt in the determination: (a) Debt permitted by any
of clauses (1) through (6) and (b) Debt incurred
prior to the date of the Senior Indenture that would have been
permitted by any of those clauses if the Senior Indenture had
been in effect at the time the Debt was incurred.
Successor
Obligor
The Indentures provide or, in the case of the Subordinated
Indenture, will provide that the Company will not consolidate
with or merge into, or transfer all or substantially all of its
assets to, any person, unless (1) the person is organized
under the laws of the United States or a State thereof;
(2) the person assumes by supplemental indenture all the
obligations of the Company under the applicable Indenture, the
Debt Securities issued under such Indenture and any coupons
pertaining thereto; (3) immediately after the transaction
no default exists; and (4) if, as a result of the
transaction, a Principal Property would become subject to a Lien
not permitted by the Limitation on Liens covenant of
the Senior Indenture, the Company or such person secures the
Senior Debt Securities equally and ratably with or prior to all
obligations secured by the Lien.
-12-
The successor will be substituted for the Company, and
thereafter all obligations of the Company under the applicable
Indenture, the Debt Securities issued under such Indenture and
any coupons shall terminate.
Exchange
of Securities
Registered Debt Securities may be exchanged for an equal
aggregate principal amount of registered Debt Securities of the
same series and date of maturity in such authorized
denominations as may be requested upon surrender of the
registered Debt Securities at an agency of the Company
maintained for such purpose and upon fulfillment of all other
requirements of the agent.
To the extent permitted by the terms of a series of Debt
Securities authorized to be issued in registered form and bearer
form, bearer Debt Securities may be exchanged for an equal
aggregate principal amount of registered or bearer Debt
Securities of the same series and date of maturity in such
authorized denominations as may be requested upon surrender of
the bearer Debt Securities with all unpaid coupons relating
thereto (except as may otherwise be provided in the Debt
Securities) at an agency of the Company maintained for such
purpose and upon fulfillment of all other requirements of the
agent. As of the date of this prospectus, it is expected that
the terms of a series of Debt Securities will not permit
registered Debt Securities to be exchanged for bearer Debt
Securities.
Defaults
and Remedies
An event of default with respect to any series of
Debt Securities will occur if:
1. the Company defaults in any payment of interest on any
Debt Securities of the series when the same becomes due and
payable and the default continues for a period of 10 days;
2. the Company defaults in the payment of the principal of
any Debt Securities of the series when the same becomes due and
payable at maturity or upon redemption, acceleration or
otherwise;
3. the Company defaults in the performance of any of its
other agreements applicable to the series and the default
continues for 90 days after the notice specified below;
4. the Company pursuant to or within the meaning of any
Bankruptcy Law:
|
|
|
|
|
commences a voluntary case,
|
|
|
|
consents to the entry of an order for relief against it in an
involuntary case,
|
|
|
|
consents to the appointment of a custodian for it or for all or
substantially all of its property, or
|
|
|
|
makes a general assignment for the benefit of its creditors;
|
5. a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
|
|
|
|
|
is for relief against the Company in an involuntary case,
|
|
|
|
appoints a custodian for the Company or for all or substantially
all of its property, or
|
|
|
|
orders the liquidation of the Company;
|
and the order or decree remains unstayed and in effect for
60 days; or
6. any other event of default provided for in the series.
The term Bankruptcy Law means Title 11,
U.S. Code or any similar Federal or State law for the
relief of debtors. The term custodian means any
receiver, trustee, assignee, liquidator or a similar official
under any Bankruptcy Law.
A default under clause (3) is not an event of default until
the applicable Debt Trustee or the holders of at least 25% in
principal amount of the series notify the Company of the default
and the Company does not cure the default within the time
specified after receipt of the notice. The applicable Debt
Trustee may require indemnity satisfactory to it before it
enforces the applicable Indenture or the Debt Securities of the
series.
-13-
Subject to certain limitations, holders of a majority in
principal amount of the Debt Securities of the series may direct
the applicable Debt Trustee in its exercise of any trust or
power. A Debt Trustee may withhold from holders of the series
notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice
is in their interest.
The Indentures do not have or, in the case of the Subordinated
Indenture, will not have cross-default provisions. Thus, a
default by the Company or a Subsidiary on any other debt would
not constitute an event of default.
Amendments
and Waivers
Unless the resolution establishing the terms of a series
otherwise provides, the applicable Indenture and the Debt
Securities or any coupons of the series may be amended, and any
default may be waived as follows: The Debt Securities and the
applicable Indenture may be amended with the written consent of
the holders of a majority in principal amount of the Debt
Securities of all series affected voting as one class. A default
on a series may be waived with the consent of the holders of a
majority in principal amount of the Debt Securities of the
series. However, without the consent of each holder affected, no
amendment or waiver may (1) reduce the amount of Debt
Securities whose holders must consent to an amendment or waiver,
(2) reduce the interest on or change the time for payment
of interest on any Debt Security, (3) change the fixed
maturity of any Debt Security, (4) reduce the principal of
any non-Discounted Debt Security or reduce the amount of
principal of any Discounted Debt Security that would be due on
acceleration thereof, (5) change the currency in which
principal or interest on a Debt Security is payable,
(6) waive any default in payment of interest on or
principal of a Debt Security or (7) change certain
provisions of the applicable Indenture regarding waiver of past
defaults and amendments with the consent of holders other than
to increase the principal amount of Debt Securities required to
consent. Without the consent of any holder, the applicable
Indenture, the Debt Securities or any coupons may be amended to
cure any ambiguity, omission, defect or inconsistency; to
provide for assumption of Company obligations to holders in the
event of a merger or consolidation requiring such assumption; to
provide that specific provisions of the applicable Indenture not
apply to a series of Debt Securities not previously issued; to
create a series and establish its terms; to provide for a
separate Debt Trustee for one or more series; or to make any
change that does not materially adversely affect the rights of
any holder.
Legal
Defeasance and Covenant Defeasance
Debt Securities of a series may be defeased in accordance with
their terms and, unless the resolution establishing the terms of
the series otherwise provides, as set forth below. The Company
at any time may terminate as to a series all of its obligations
(except for certain obligations with respect to the defeasance
trust and obligations to register the transfer or exchange of a
Debt Security, to replace destroyed, lost or stolen Debt
Securities and coupons and to maintain agencies in respect of
the Debt Securities) with respect to the Debt Securities of the
series and any related coupons and the applicable Indenture
(legal defeasance). The Company at any time may
terminate as to a series its obligations with respect to the
Debt Securities and coupons of the series under the covenants
described under Certain Covenants (covenant
defeasance).
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an event of default. If
the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to the covenants described
under Certain Covenants.
To exercise either option as to a series, the Company must
deposit in trust (the defeasance trust) with the
applicable Debt Trustee money or U.S. Government
Obligations for the payment of principal, premium, if any, and
interest on the Debt Securities of the series to redemption or
maturity and must comply with certain other conditions. In
particular, the Company must obtain an opinion of tax counsel
that the defeasance will not result in recognition for Federal
income tax purposes of any gain or loss to holders of the
series. U.S. Government Obligations are direct
obligations of the United States of America which have the full
-14-
faith and credit of the United States of America pledged for
payment and which are not callable at the issuers option,
or certificates representing an ownership interest in such
obligations.
Global
Debt Securities
Global Debt Securities may be issued in registered, bearer or
uncertificated form and in either temporary or permanent form.
If Debt Securities of a series are to be issued as global Debt
Securities, one or more global Debt Securities will be issued in
a denomination or aggregate denominations equal to the aggregate
principal amount of outstanding Debt Securities of the series to
be represented by such global Debt Security or Securities.
Ownership of beneficial interests in global Debt Securities will
be limited to participants and to persons that have accounts
with the depositary (participants) or persons that
may hold interests through participants. Ownership interests in
global Debt Securities will be shown on, and the transfer of
that ownership interest will be effected only through, records
maintained by the depositary or its nominee for such global Debt
Securities (with respect to a participants interest) and
records maintained by participants (with respect to interests of
persons other than participants).
Unless otherwise indicated in a prospectus supplement, payment
of principal of and any premium and interest on the book-entry
Debt Securities represented by a global Debt Security will be
made to the depositary or its nominee, as the case may be, as
the sole registered owner and the sole holder of the book-entry
Debt Securities represented thereby for all purposes under the
applicable Indenture. Neither the Company or the applicable Debt
Trustee, nor any agent of the Company or the applicable Debt
Trustee, will have any responsibility or liability for any acts
or omissions of the depositary for any records of the depositary
relating to beneficial ownership interests in any global Debt
Security for any transactions between a depositary and
beneficial owners.
Upon receipt of any payment of principal of or any premium or
interest on a global Debt Security, the depositary will
immediately credit, on its book-entry registration and transfer
system, the accounts of participants with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such global Debt Security as shown on the
records of the depositary. Payments by participants to owners of
beneficial interests in global Debt Securities held through such
participants will be governed by standing instructions and
customary practices, as is now the case with securities held for
customer accounts registered in street name, and
will be the sole responsibility of such participants.
Unless and until the global security is exchanged in whole or in
part for debt securities in definitive form, a global security
may not be transferred except as a whole by the depository (or
its nominee for such global security. If transferred in whole,
the following types of transfer which are allowed for global
securities: (1) the depositary may transfer the global
security to a nominee of that depository, (2) a nominee of
the depository may transfer the global security to the
depository or another nominee of that depository or (3) the
depository or any nominee of that depository may transfer the
global security to a successor depositary or a nominee of that
successor depositary. In addition, if (1) the depositary
notifies the Company in writing that The Depository
Trust Company (DTC) is no longer willing or
able to act as a depositary and the Company is unable to locate
a qualified successor within 90 days or (2) the
Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Debt Securities in definitive
form under the applicable Indenture, then, upon surrender by the
relevant global Debt Security holder of its global Debt
Security, Debt Securities in such form will be issued to each
person that such global Debt Security holder and DTC identifies
as being the beneficial owner of the related Debt Securities.
Any global Debt Security that is exchangeable pursuant to the
two preceding sentences shall be exchangeable for Registered
Debt Securities issuable in denominations of $2,000 and whole
multiples of $1,000 in excess thereof and registered in such
names as the depositary holding such global Debt Security shall
direct. Subject to the foregoing, the global Debt Security is
not exchangeable, except for a global Debt Security of like
denomination to be registered in the name of the depositary or
its nominee.
So long as the depositary for global Debt Securities of a
series, or its nominee, is the registered owner of such global
Debt Securities, such depositary or such nominee, as the case
may be, will be considered the sole
-15-
holder of Debt Securities represented by such global Debt
Securities for the purposes of receiving payment on such global
Debt Securities, receiving notices and for all other purposes
under the applicable Indenture and such global Debt Securities.
Except as provided above, owners of beneficial interests in
global Debt Securities of a series will not be entitled to
receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the holders thereof
for any purpose under the applicable Indenture. Accordingly,
each person owning a beneficial interest in a global Debt
Security must rely on the procedures of the depositary and, if
such person is not a participant, on the procedures of the
participant through which such person owns its interest, to
exercise any rights of a holder under the applicable Indenture.
The depositary may grant proxies and otherwise authorize
participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a
holder is entitled to give or take under the applicable
Indenture. The Company understands that under existing industry
practices, in the event that the Company requests any action of
holders or that an owner of a beneficial interest in such a
global Debt Security desires to give or take any action which a
holder is entitled to give or take under the applicable
Indenture, the depositary would authorize the participants
holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners
owning through such participants to give or take such action or
would otherwise act upon the instructions of beneficial owners
owning through them.
Unless otherwise specified in a prospectus supplement relating
to Debt Securities of a series to be issued as global Debt
Securities, DTC will be the depositary. DTC has advised the
Company that it is a limited-purpose trust company organized
under the law of the State of New York, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code, and a
clearing agency registered under the Exchange Act.
DTC was created to hold the securities of its participants and
to facilitate the clearance and settlement of securities
transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants,
thereby eliminating the need for physical movement of securities
certificates. DTCs participants include securities brokers
and dealers (which may include the underwriters, dealers or
agents with respect to the Debt Securities), banks, trust
companies, clearing corporations, and certain other
organizations some of whom (and/or their representatives) own
DTC. Access to DTCs book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a
participant either directly or indirectly.
Conversion
and Exchange
The terms, if any, on which debt securities of any series are
convertible into or exchangeable for our common stock, preferred
stock, or other debt securities will be set forth in the
applicable prospectus supplement and a supplemental indenture.
Those terms may include provisions for conversion or exchange,
whether mandatory, at the option of the holders or at our option.
Trustee
U.S. Bank National Association is Senior Trustee for Debt
Securities issued under the Senior Indenture. The Subordinated
Trustee for Debt Securities issued under the Subordinated
Indenture will be identified in the related prospectus
supplement. The Senior Trustee is one of several banks which
provide credit and banking services to the Company.
-16-
PLAN OF
DISTRIBUTION
The Company may sell the securities described in this prospectus
in any of the following ways:
(1) through underwriters or dealers;
(2) directly to one or more purchasers;
(3) through agents; or
(4) through a combination of any such methods of sale.
We may distribute debt securities from time to time in one or
more transactions at (1) a fixed price or prices, which may
be changed, (2) at market prices prevailing at the time of
sale, (3) at prices related to such market prices, or
(4) at negotiated prices.
Any underwriters, dealers or agents may be deemed to be an
underwriter within the meaning of the Securities Act
of 1933. The prospectus supplement with respect to the
securities being offered thereby will set forth the terms of the
offering of such securities, including the name or names of any
underwriters or agents, the purchase price of such securities
and the proceeds to the Company from such sale, any underwriting
discounts, commissions and other items constituting
underwriters compensation under the Securities Act of
1933, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such securities may be listed.
If underwriters are used in the sale of securities, such
securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. The securities may be offered to the public either
through underwriting syndicates (which may be represented by
managing underwriters designated by the Company), or directly by
one or more underwriters acting alone. Unless otherwise set
forth in the prospectus supplement, the obligations of the
underwriters to purchase the securities offered thereby will be
subject to certain customary conditions precedent, and the
underwriters will be obligated to purchase all such securities
if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
The securities may be sold directly by the Company or through
agents designated by the Company from time to time. The
prospectus supplement with respect to any securities sold in
this manner will set forth the name of any agent involved in the
offer or sale of the securities as well as any commissions
payable by the Company to such agent. Unless otherwise indicated
in the prospectus supplement, any such agent is acting on a best
efforts basis for the period of its appointment.
If dealers are utilized in the sale of any securities, the
Company will sell the securities to the dealers, as principals.
Any dealer may then resell the securities to the public at
varying prices to be determined by the dealer at the time of
resale. The name of any dealer and the terms of the transaction
will be set forth in the prospectus supplement with respect to
the securities being offered thereby.
If so indicated in the prospectus supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase securities from the
Company at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in
the prospectus supplement and the prospectus supplement will set
forth the commission payable for the solicitation of such
contracts.
We may from time to time offer debt securities directly to the
public, with or without the involvement of agents, underwriters
or dealers, and may utilize the Internet or another electronic
bidding or ordering system for the pricing and allocation of
such debt securities. Such a system may allow bidders to
directly participate, through electronic access to an auction
site, by submitting conditional offers to buy that are subject
to acceptance by us, and which may directly affect the price or
other terms at which such securities are sold. Such a bidding or
ordering system may present to each bidder, on a real-time
basis, relevant information to assist you in making a bid, such
as the clearing spread at which the offering would be sold,
based on the bids
-17-
submitted, and whether a bidders individual bids would be
accepted, prorated or rejected. Typically the clearing spread
will be indicated as a number of basis points above an index
treasury note. Other pricing methods may also be used. Upon
completion of such an auction process securities will be
allocated based on prices bid, terms of bid or other factors.
The final offering price at which debt securities would be sold
and the allocation of debt securities among bidders, would be
based in whole or in part on the results of the Internet bidding
process or auction. Many variations of Internet auction or
pricing and allocation systems are likely to be developed in the
future, and we may utilize such systems in connection with the
sale of debt securities. The specific rules of such an auction
would be distributed to potential bidders in an applicable
prospectus supplement. If an offering is made using such bidding
or ordering system you should review the auction rules, as
described in the prospectus supplement, for a more detailed
description of such offering procedures.
We may authorize underwriters or other persons acting as our
agents to solicit offers by institutions to purchase debt
securities from us pursuant to contracts providing for payment
and delivery on a future date. These institutions may include
commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable
institutions and others, but in all cases we must approve these
institutions. The obligations of any purchaser under any of
these contracts will be subject to the condition that the
purchase of the debt securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and other
agents will not have any responsibility in respect of the
validity or performance of these contracts.
In connection with the offering of the securities, underwriters
may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. Specifically, the
underwriters may overallot in connection with the offerings of
the securities, creating a syndicate short position. In
addition, underwriters may bid for, and purchase, securities in
the open market to cover syndicate shorts or to stabilize the
price of the securities. Finally, the underwriting syndicate may
reclaim selling concessions allowed for distributing the
securities in the offering of the securities, if the syndicate
repurchases previously distributed securities in syndicate
covering transactions, syndicate transactions or otherwise. Any
of these activities may stabilize or maintain the market prices
of the securities above independent market levels. The
underwriters are not required to engage in any of these
activities, and may end any of them at any time.
It has not been determined whether any securities will be listed
on a securities exchange. Underwriters will not be obligated to
make a market in any securities. The Company cannot predict the
activity of trading in, or liquidity of, any securities.
Agents, underwriters and dealers may be entitled, under
agreements entered into with the Company, to indemnification by
the Company against certain civil liabilities, including
liabilities under the Securities Act or to contribution with
respect to payments which the agents, underwriters or dealers
may be required to make in respect thereof. Agents, underwriters
and dealers may be customers of, engage in transactions with, or
perform services for the Company in the ordinary course of
business.
In connection with the original issuance of debt securities
issued as bearer securities, in order to meet the requirements
set forth in U.S. Treasury
Regulation Section 1.163-5(c)(2)(i)(D),
each underwriter, dealer and agent will agree to certain
restrictions in connection with the original issuance of such
debt securities. Such restrictions will be described in the
applicable prospectus supplement.
LEGAL
MATTERS
Certain legal matters in connection with the securities will be
passed upon for the Company by Cahill Gordon & Reindel
llp, New York, New
York, and for the agents, underwriters and dealers by Davis
Polk & Wardwell LLP of New York, New York.
-18-
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal
Control over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on
Form 10-K
for the year ended December 31, 2008 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC and our common stock is
listed on the New York Stock Exchange under the symbol
PX. Our SEC filings are available to the public over
the Internet at the SECs web site at
http://www.sec.gov.
You may also read and copy any document we file at the
SECs public reference room at 100 F Street,
N.E., Washington, D.C. 20549. You can call the SEC at
1-800-732-0330
for further information about the public reference rooms.
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act of 1933, as amended, with respect to
the securities that may be offered. This prospectus, which forms
a part of the registration statement, does not contain all of
the information set forth in the registration statement and the
exhibits and schedules thereto, parts of which are omitted in
accordance with the rules and regulations of the SEC. For more
information about us and the securities, you should see the
registration statement and its exhibits and schedules. Any
statement made in this prospectus concerning the provisions of
documents is a summary and you should refer to the copy of that
document filed as an exhibit to the registration statement with
the SEC.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with them, which means we are assumed to
have disclosed important information to you when we refer you to
documents that are on file with the SEC. The information we have
incorporated by reference is an important part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We
incorporate by reference the documents listed below and any
future documents we file with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
the termination of the offering of the securities to which this
prospectus relates, provided that information furnished and not
filed by us under any item of any Current Report on
Form 8-K
including the related exhibits is not incorporated by reference.
|
|
|
|
|
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008.
|
|
|
|
The information responsive to part III of
Form 10-K
for the fiscal year ended December 31, 2008 provided in our
Proxy Statement on Form 14A dated March 17, 2009.
|
|
|
|
Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2009, June 30, 2009
and September 30, 2009.
|
|
|
|
Current Reports on
Form 8-K
filed on January 29, 2009, March 26, 2009,
May 26, 2009, August 13, 2009, September 1, 2009
and November 2, 2009.
|
|
|
|
The description of the Companys capital stock set forth
under the caption Item 11. Description of
Registrants Securities to be Registered in the
Companys Registration Statement on Form 10 dated
March 10, 1992 as amended by the Companys Form 8
dated May 22, 1992, Form 8 dated June 9, 1992 and
Form 8 dated June 12, 1992.
|
-19-
You may request a copy of any or all of the documents that we
have incorporated by reference at no cost by requesting in
writing, by telephone or via the Internet at:
Praxair, Inc.
39 Old Ridgebury Road
Danbury, Connecticut
06810-5113
Attn: Assistant Corporate Secretary
Telephone:
(203) 837-2000
www.praxair.com
Information on our Internet website is not part of this
prospectus.
-20-