AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 9, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AIR PRODUCTS AND CHEMICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 23-1274455
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7201 HAMILTON BOULEVARD
ALLENTOWN, PENNSYLVANIA 18195-1501
(610) 481-4911
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
W. DOUGLAS BROWN, ESQ.
Vice President, General Counsel and Secretary
AIR PRODUCTS AND CHEMICALS, INC.
7201 HAMILTON BOULEVARD
ALLENTOWN, PENNSYLVANIA 18195-1501
(610) 481-4911
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
COPY TO:
D. COLLIER KIRKHAM, ESQ.
CRAVATH, SWAINE & MOORE, LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. :
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. : _______
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. : _______
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(2) OFFERING PRICE PER UNIT(3) AGGREGATE OFFERING PRICE(2)(3) REGISTRATION FEE
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Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Warrants
TOTAL...................... $1,000,000,000 100% $1,000,000,000 $80,900
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(1) Includes such indeterminate principal amount of debt securities, such
indeterminate number of shares of preferred and common stock, Depositary
Shares and Warrants, as may from time to time be issued at indeterminate
prices.
(2) Represents the aggregate initial offering price of all securities sold.
Amounts represent United States Dollars or the equivalent in one or more
other currencies or currency units.
(3) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933 and exclusive
of accrued interest and dividends, if any.
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The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 9, 2004
PROSPECTUS
AIR PRODUCTS AND CHEMICALS, INC.
$1,000,000,000
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
We may offer these securities in one or more offerings. We will provide
the specific terms of these securities in supplements to this prospectus. You
should read this prospectus and any supplement carefully before you invest.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 2004
TABLE OF CONTENTS
Page
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WHERE YOU CAN FIND MORE INFORMATION.............................................................................. 3
THE COMPANY...................................................................................................... 3
RATIOS OF EARNINGS TO FIXED CHARGES.............................................................................. 4
USE OF PROCEEDS.................................................................................................. 4
DESCRIPTION OF SECURITIES........................................................................................ 4
PLAN OF DISTRIBUTION............................................................................................. 15
LEGAL OPINIONS................................................................................................... 16
EXPERTS.......................................................................................................... 16
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
document we file at the SEC's Public Reference Room, 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 for further
information on the SEC's Public Reference Room. You may also access our SEC
filings at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this
prospectus the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until this offering is
completed:
(i) Annual Report on Form 10-K for the year ended September
30, 2003; and
(ii) the description of our common stock in our Form 8-A that
was filed on March 20, 1998.
You may request a copy of these filings at no cost, by writing
to or telephoning us at:
Corporate Secretary's Office
Air Products and Chemicals, Inc.
7201 Hamilton Boulevard
Allentown, Pennsylvania 18195-1501
Telephone: (610) 481-4911
You should rely only on the information incorporated by
reference or provided in this prospectus or the accompanying prospectus
supplement. We have not authorized anyone to provide you with different
information. We are not making an offer of these securities in any state where
the offer is not permitted. You should not assume that the information in this
prospectus, any prospectus supplement or any document which we incorporate by
reference is accurate as of any date other than the date on its cover.
THE COMPANY
We are an internationally recognized industrial gas and
related industrial process equipment business, and maintain strong positions as
a producer of certain chemicals.
Our industrial gases business segment recovers and distributes
industrial gases such as oxygen, nitrogen, argon and hydrogen and a variety of
medical and specialty gases. Our chemicals business segment produces and markets
performance materials and chemical intermediates. Our equipment business segment
supplies cryogenic and other process equipment and related engineering services.
We were incorporated in 1961 under Delaware law and are the
successor to a Michigan corporation organized in 1940. Our principal executive
offices are located at 7201 Hamilton Boulevard, Allentown, Pennsylvania
18195-1501.
On June 15, 2002, Arthur Andersen LLP ("Arthur Andersen"), our
former independent public accountants, was convicted of federal obstruction of
justice. We decided to no longer engage Arthur Andersen as our principal
accountants in 2002 and selected KPMG LLP to serve as our independent public
accountants for fiscal 2002. Arthur Andersen audited our financial statements
for the fiscal year ended September 30, 2001. As a result, you may have no
effective remedy against Arthur Andersen in connection with a material
misstatement or omission in those financial statements, particularly in the
event that Arthur Andersen ceases to exist as an entity or becomes insolvent as
a result of the conviction or other proceedings against it.
The SEC has provided regulatory relief pursuant to Rule 437a
under the Securities Act of 1933 that is designed to allow companies that file
reports with the SEC to dispense with the requirement to file a consent of
Arthur Andersen in certain circumstances. We were unable to obtain, after
reasonable
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efforts, the written consent of Arthur Andersen to our naming it as an expert
and as having audited certain of our financial statements incorporated by
reference into this prospectus. Because Arthur Andersen has not provided its
consent, you will not be able to recover against Arthur Andersen under Section
11 of the Securities Act of 1933 for any untrue statement of a material fact
contained in the financial statements audited by Arthur Andersen or any
omissions to state a material fact required to be stated in those financial
statements.
RATIOS OF EARNINGS TO FIXED CHARGES
YEAR ENDED SEPTEMBER 30,
---------------------------------------------
1999 2000 2001 2002 2003
---- ---- ---- ---- ----
Ratio of earnings to fixed charges........... 3.7 1.3 3.7 5.5 4.5
The ratio of earnings to fixed charges is determined by
dividing earnings, which includes income before taxes, undistributed earnings of
less than fifty percent owned affiliates and fixed charges, by fixed charges.
Fixed charges consist of interest on all indebtedness plus that portion of
operating lease rentals representative of the interest factor (deemed to be 21%
of operating lease rentals).
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus
supplement, the net proceeds we receive from the sale of the securities offered
by this prospectus and the accompanying prospectus supplement will be used for
general corporate purposes. General corporate purposes may include the repayment
of debt, investments in or extensions of credit to our subsidiaries, redemption
of common stock or preferred stock and the financing of possible acquisitions or
business expansion. The net proceeds may be invested temporarily or applied to
repay short-term debt until they are used for their stated purpose.
DESCRIPTION OF SECURITIES
DEBT SECURITIES
The following description of the terms of the debt securities
sets forth general terms that may apply to the debt securities. The particular
terms of any debt securities will be described in the prospectus supplement
relating to those debt securities.
The debt securities will be our senior debt securities. The
debt securities will be issued under an indenture dated as of January 10, 1995,
between us and Wachovia Bank, National Association (formerly First Fidelity
Bank, National Association), as trustee (the "Indenture").
The following is a summary of the most important provisions of
the Indenture. A copy of the Indenture is an exhibit to the registration
statement of which this prospectus is a part. Section references below are to
the section in the Indenture. The referenced sections of the Indenture are
incorporated by reference.
GENERAL
The Indenture does not limit the amount of debt securities
that we may issue. The Indenture provides that debt securities may be issued up
to the principal amount authorized by us from time to time. The debt securities
will be unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt.
The debt securities may be issued in one or more separate
series. The prospectus supplement relating to the particular series of debt
securities being offered will specify the particular amounts, prices and terms
of those debt securities. These terms may include:
- the title of the debt securities;
- any limit upon the aggregate principal amount issued;
- the maturity date or dates, or the method of determining the
maturity dates;
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- the interest rate or rates, or the method of determining those
rates;
- the interest payment dates and the regular record dates;
- the places where payments may be made;
- any mandatory or optional redemption provisions;
- any sinking fund or analogous provisions;
- the portion of principal amount of the debt security payable
upon acceleration of maturity if other than the full principal
amount;
- any deletions of, or changes or additions to, the events of
default or covenants;
- the form of the debt securities;
- if other than U.S. dollars, the currency or currencies,
including composite currencies, in which payments on the debt
securities will be payable and whether we or a holder may
elect payment to be made in a different currency;
- the method of determining the amount of any payments on the
debt securities which are linked to an index;
- whether the debt securities will be issued in the form of one
or more global securities in temporary or definitive form;
- any terms relating to the delivery of the debt securities if
they are to be issued upon the exercise of warrants;
- whether and on what terms we will pay additional amounts to
holders of the debt securities that are not U.S. persons in
respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether and on what terms we will have
the option to redeem the debt securities rather than pay the
additional amounts;
- any conversion or exchange provisions;
- any terms for the attachment to the debt securities of
warrants, options or other rights to purchase or sell our
securities;
- any special United States Federal income tax or other
considerations with respect to the debt securities; and
- any other specific terms of the debt securities.
(Section 2.3)
Unless otherwise specified in the prospectus supplement, debt
securities denominated in U.S. dollars will be issued in denominations of $1,000
or an integral multiple of $1,000. (Section 2.8)
We may issue some of the debt securities as original issue
discount debt securities. Original issue discount securities bear no interest or
bear interest at below-market rates and will be sold at a discount below their
stated principal amount.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens - Subject to the exceptions set forth below under
"Exempted Indebtedness," we covenant that we will not create or assume, nor will
we permit any Restricted Subsidiary (as hereinafter defined) to create or
assume, any
- mortgage,
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- security interest,
- pledge, or
- lien
(together, we refer to these transactions as "liens") of or upon any Principal
Property (as defined below), or any underlying real estate of such property, or
shares of capital stock or indebtedness of any Restricted Subsidiary, whether
owned at the date of the Indenture or thereafter acquired, without equally and
ratably securing the outstanding debt securities. This restriction will not
apply to certain permitted liens, including the following:
(1) liens on any Principal Property which are created or assumed
contemporaneously with, or within 120 days after (or in the case of any
such Principal Property which is being financed on the basis of
long-term contracts or similar financing arrangements for which a firm
commitment is made by one or more banks, insurance companies or other
lenders or investors (not including us or any Restricted Subsidiary),
then within 360 days after), the completion of the acquisition,
construction or improvement of such Principal Property to secure or
provide for the payment of any part of the purchase price of such
property or the cost of such construction or improvement, or liens on
any Principal Property existing at the time of acquisition thereof;
(2) liens on property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into or
consolidated with us or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation
substantially as an entirety to us or a Restricted Subsidiary;
(3) liens on property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(4) liens to secure indebtedness of a Restricted Subsidiary to us or to
another Restricted Subsidiary, but only so long as such indebtedness is
held by us or a Restricted Subsidiary;
(5) liens in favor of the United States of America or any State
thereof, or any department, agency or political subdivision of the
United States of America or any State thereof, to secure certain
payments pursuant to any contract or statute, including liens to secure
indebtedness of the pollution control or industrial revenue bond type,
or to secure indebtedness incurred for the purpose of financing all or
any part of the purchase price or cost of constructing or improving
property subject to such liens;
(6) liens in favor of any customer arising in respect of certain
payments made by or on behalf of such customer for goods produced for
or services rendered to such customer in the ordinary course of
business not exceeding the amount of such payments;
(7) liens to extend, renew or replace in whole or in part any lien
referred to in the foregoing clauses (1) to (6), or in this clause (7),
or any lien created prior to and existing on the date of the Indenture,
provided that the principal amount of indebtedness secured thereby
shall not exceed the principal amount of indebtedness so secured at the
time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of
the property subject to the lien so extended, renewed or replaced (plus
improvements on such property); and
(8) certain statutory liens, liens for taxes and certain other liens.
(Section 3.6)
Limitations on Sale and Lease-Back Transactions - Subject to the
exceptions set forth below under "Exempted Indebtedness," sale and lease-back
transactions by us or any Restricted Subsidiary of any Principal Property which
has been owned and operated by us or a Restricted Subsidiary for more than 120
days are prohibited unless
(1) the property involved is property which could be the subject of a
lien without equally and ratably securing the debt securities;
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(2) an amount equal to the Attributable Debt (as hereinafter defined)
of any such sale and lease-back transaction is applied to the
acquisition of another Principal Property of equal or greater fair
market value or to retirement of indebtedness for borrowed money
(including the securities) which by its terms matures on or is
renewable at the option of the obligor to a date more than twelve
months after the creation of such indebtedness; or
(3) the lease involved is for a term (including renewals) of not more
than three years.
(Section 3.7)
Exempted Indebtedness - Either we or a Restricted Subsidiary may create
or assume liens and enter into sale and lease-back transactions, notwithstanding
the limitations outlined above, provided that at the time thereof and after
giving effect thereto the aggregate amount of indebtedness secured by all such
liens and Attributable Debt of all such sale and lease-back transactions
outstanding shall not exceed 5% of Consolidated Net Tangible Assets (as
hereinafter defined). (Section 3.8)
Limitations on Mergers, Consolidations and Sales of Assets - If, upon
our consolidation or merger with or into any other corporation, or upon any
sale, conveyance or lease of substantially all our properties, any Principal
Property would become subject to any lien, we, prior to such event, will secure
the debt securities equally and ratably with any of our other obligations then
entitled thereto by a direct lien on all such Principal Property prior to all
other liens other than any theretofore existing thereon. (Section 3.9)
-Certain Definitions -
The term "Restricted Subsidiary" means any Subsidiary
(a) substantially all the property of which is
located, or substantially all the business of which
is carried on, within the United States and
(b) which owns or leases a Principal Property.
The term "Principal Property" means any manufacturing plant, research
facility or warehouse owned or leased by us or any of our subsidiaries
which is located within the United States and has a net book value
exceeding the greater of $5,000,000 and 1% of the shareholders' equity
of our company and our consolidated subsidiaries, excluding any
property which the board of directors by resolution declares is not of
material importance to our total business as consolidated with the
business of our subsidiaries.
The term "Attributable Debt" means the present value (discounted as
provided in the senior indenture) of the obligation of a lessee for
required rental payments for the remaining term of any lease.
The term "Consolidated Net Tangible Assets" means at any time the total
of all assets appearing on the most recent consolidated balance sheet
of us and our consolidated subsidiaries, prepared in accordance with
generally accepted accounting principles, at our and their net book
values (after deducting related depreciation, depletion, amortization
and all other valuation reserves which, in accordance with such
principles, are set aside in connection with the business conducted),
but excluding goodwill, trademarks, patents, unamortized debt discount
and all other like segregated intangible assets, and amounts on the
asset side of such balance sheet for our capital stock, all as
determined in accordance with such principles, less Consolidated
Current Liabilities.
The term "Consolidated Current Liabilities" means the aggregate of the
current liabilities of us and our consolidated subsidiaries appearing
on the consolidated balance sheet of our company and our consolidated
subsidiaries, all as determined in accordance with generally accepted
accounting principles.
(Section 1.1)
Other than the restrictions on liens and sale and lease-back
transactions described above, neither the Indenture nor the debt securities
afford you protection in the event of a highly leveraged
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transaction involving us or any of our subsidiaries, including any takeover,
recapitalization or other restructuring that may result in a sudden and
significant decline in credit rating.
EVENTS OF DEFAULT, WAIVER AND NOTICE
As to any series of securities, an "event of default" is
defined in the Indenture as being any of the following events:
(1) default for 30 days in the payment of any interest on the
securities of such series;
(2) default in the payment of principal or premium due on the
securities of any series;
(3) default in the payment of any sinking fund installment on
the securities of such series, when due;
(4) our default for 90 days in the performance of any other of
the covenants or agreements in the Indenture (other than those
set forth exclusively in the terms of any other series of
securities);
(5) certain events of bankruptcy, insolvency and
reorganization of our company; or
(6) any other events as may be established in any applicable
supplement.
(Section 5.1)
No event of default with respect to any particular series of
securities necessarily constitutes an event of default with respect to any other
series of securities. (Section 5.11)
The trustee must give notice of a default to the holders of
the series of debt securities on which the default exists within 90 days unless
the default is cured or waived. However, the trustee may withhold this notice if
the trustee considers it in the interest of the holders of securities of such
series to do so. The trustee may not withhold notice in the event of a payment
default with regard to principal, interest or a sinking fund. (Section 5.11)
If an event of default has occurred and is continuing:
- as described in clause (1), (2) or (3) above, either the
trustee or the holders of 25% in principal amount of the
securities of such series then outstanding may declare the
principal (or, in the case of discounted securities, the
amount specified in the terms thereof) of all such securities
to be due and payable immediately.
- as described in clause (4) or (5) above, either the trustee or
the holders of not less than 25% in principal amount of all
affected securities, voting as a single class, may declare the
principal (or, in the case of discounted securities, the
amount specified in the terms thereof) of all securities to be
due and payable immediately.
However, upon certain conditions past defaults as described in clause (4) or (5)
above may be waived by the holders of a majority in principal amount of the
affected securities then outstanding, except for defaults in
- the payment of principal of, or any premium or interest on,
such securities or
- with respect to any covenant or provision which may not be
amended without the approval of each holder affected.
(Sections 5.1 and 5.10)
The holders of a majority in principal amount of the
securities of each series affected, voting as a separate class, may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee under the Indenture, subject to certain limitations specified in the
Indenture, provided that the holders of securities shall have offered to the
trustee reasonable indemnity against costs,
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expenses and liabilities. (Sections 5.9 and 6.2(d)) We must certify to the
trustee on a yearly basis as to the absence of certain defaults. (Section 3.5)
MODIFICATION OF THE INDENTURE
Together with the trustee, and subject to the consent of the
holders of at least 66 2/3% of the outstanding principal amount of the
outstanding debt securities of all affected series, we may modify the Indenture
or any supplement to the Indenture. Without the consent of each affected holder,
we may not:
(1) extend the final maturity of any security;
(2) reduce the principal amount or rate of interest of any
security;
(3) extend the time of payment of interest of any security;
(4) reduce the amount payable upon the redemption of any
security;
(5) reduce the amount of the principal of a discounted
security payable upon acceleration of the maturity of the
security or in the event of bankruptcy;
(6) impair the right to institute suit to enforce payment or
repayment; or
(7) change the provisions in the indenture that relate to its
modification or amendment.
(Section 8.2)
CONCERNING THE TRUSTEE
Wachovia Bank, National Association, the trustee under the
Indenture, also performs certain cash management services for, and provides
certain credit facilities to, us in the normal course of business.
DEFEASANCE OF THE INDENTURE AND SECURITIES
We may, at any time, satisfy our obligations with respect to
any payments of principal, premium or interest of any security or securities of
any series by depositing in trust with the trustee:
(a) money (in the currency in which the securities are payable),
(b) in the case of securities denominated in U.S. dollars, U.S.
Government Obligations (as defined in the Indenture), or a combination
of U.S. Government Obligations and money, or
(c) in the case of securities denominated in a foreign currency,
Foreign Government Securities (as defined in the Indenture) or a
combination of Foreign Government Securities and money.
If the deposit is sufficient to make all payments of interest, principal and
premium when due, our obligations with respect to such securities will be
discharged and terminated (except as to certain of our obligations to the
trustee), and you will able to look only to the trust fund for any payment of
principal, premium and interest on securities of such series until maturity or
redemption. (Article Ten)
Under United States Federal income tax law, any deposit as
described just above is viewed as a taxable exchange of the securities deposited
in the trust for interests in, or for an instrument representing indebtedness
of, the trust. Accordingly, at such time as we may elect to deposit securities
in a trust as described above, you would be required to recognize taxable gain
or loss as if the securities had been sold for an amount equal to the sum of the
amount of money and the fair market value of the securities held in the trust
(or, alternatively, the value of the instrument). You then may be required to
include in taxable income your share of the income, gain and loss of the trust.
Alternatively, the trust might be considered a separate taxable entity, in which
case you might also be taxable on original issue discount as well as interest on
the instrument. You should consult your own advisors with respect to the more
detailed
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tax consequences of such deposit and discharge, including possible liabilities
with regard to tax laws other than United States Federal income tax law.
GLOBAL SECURITIES
We may issue the debt securities of a series in whole or in
part in the form of one or more global certificates that will be deposited with
a depositary we will identify in a prospectus supplement. We will describe the
specific terms of the depositary arrangement with respect to a series of debt
securities in the accompanying prospectus supplement.
Upon the issuance of a global security, the depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of that global security to the accounts of participants in the
depositary. Ownership of beneficial interests in a global security will be
limited to participants or persons that hold interests through participants.
So long as the depositary for a global security, or its
nominee, is the registered owner of the global security, the depositary or its
nominee, as the case may be, will be considered the sole owner or holder of the
securities represented by that global security. Except as provided in the
indenture, owners of beneficial interests in securities represented by a global
security will not
(a) be entitled to have such securities registered in their names,
(b) receive or be entitled to receive physical delivery of certificates
representing such securities in definitive form,
(c) be considered the owners or holders thereof under the Indenture or
(d) have any rights under the Indenture.
We may, in our sole discretion, at any time determine that any series of
securities issued or issuable in the form of a global security shall no longer
be represented by such global security and such global security shall be
exchanged for securities in definitive form pursuant to the Indenture.
(Section 2.14)
PREFERRED STOCK
The following is a description of general terms and provisions
of the preferred stock. The particular terms of any series of preferred stock
will be described in the applicable prospectus supplement.
All of the terms of the preferred stock are, or will be,
contained in our Restated Certificate of Incorporation and the certificate of
amendment relating to each series of the preferred stock, which will be filed
with the SEC at or prior to the time of issuance of the series of the preferred
stock.
We are authorized to issue up to 25,000,000 shares of
preferred stock, par value $1.00 per share. As of January 9, 2004, no shares of
preferred stock were outstanding. Subject to limitations prescribed by law, the
board of directors is authorized at any time to issue one or more series of
preferred stock.
The board of directors is authorized to determine, for each
series of preferred stock, and the prospectus supplement will set forth with
respect to the series the following information:
- the designation for any series by number, letter or title
that shall distinguish the series from any other series of
preferred stock;
- the number of shares in any series;
- whether dividends on that series of preferred stock will be
cumulative;
- the dividend rate (or method for determining the rate);
- any liquidation preference per share of that series of
preferred stock;
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- any conversion provisions applicable to that series of
preferred stock;
- any redemption or sinking fund provisions applicable to that
series of preferred stock;
- any voting rights of that series of preferred stock; and
- the terms of any other preferences or rights applicable to
that series of preferred stock.
The preferred stock, when issued, will be fully paid and
nonassessable.
DIVIDENDS
Holders of preferred stock will be entitled to receive, when,
as and if declared by the board of directors, cash dividends at the rates and on
the dates as set forth in the prospectus supplement. Generally, no dividends
will be declared or paid on any series of preferred stock unless full dividends
for all series of preferred stock, including any cumulative dividends still
owing, have been or contemporaneously are declared and paid. When those
dividends are not paid in full, dividends will be declared pro-rata so that the
amount of dividends declared per share on each series of preferred stock will
bear to each other series the same ratio that accrued dividends per share for
each respective series of preferred stock bear to aggregate accrued dividends
for all outstanding shares of preferred stock. In addition, generally, unless
all dividends on the preferred stock have been paid, no dividends will be
declared or paid on the common stock and we may not redeem or purchase any
common stock.
Payment of dividends on any series of preferred stock may be
restricted by loan agreements, indentures and other transactions we may enter
into.
LIQUIDATION
If we voluntarily or involuntarily liquidate, dissolve or wind
up our affairs, the holders of each series of preferred stock will be entitled
to receive the liquidation preference per share specified in the prospectus
supplement plus any accrued and unpaid dividends. Holders of preferred stock
will be entitled to receive these amounts before any distribution is made to the
holders of common stock. If the amounts payable with respect to preferred stock
are not paid in full, the holders of preferred stock will share ratably in any
distribution of assets based upon the aggregate liquidation preference for all
outstanding shares for each series. After the holders of shares of preferred
stock are paid in full, they will have no right or claim to any of our remaining
assets.
Neither the par value nor the liquidation preference is
indicative of the price at which the preferred stock will actually trade on or
after the date of issuance.
VOTING
Generally, the holders of preferred stock will not be entitled
to vote except as set forth in the prospectus supplement, the Restated
Certificate of Incorporation or certificate of amendment or as otherwise
required by law.
NO OTHER RIGHTS
The shares of a series of preferred stock will not have any
preemptive rights, preferences, voting powers or relative, participating,
optional or other special rights except as set forth in the prospectus
supplement, the Restated Certificate of Incorporation or certificate of
amendment or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of preferred stock will be
designated in the prospectus supplement.
11
DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of
preferred stock, rather than full shares of preferred stock. If we do, we will
issue to the public receipts for depositary shares and each of these depositary
shares will represent a fraction of a share of a particular series of preferred
stock. Each owner of a depositary share will be entitled, in proportion to the
applicable fractional interest in shares of preferred stock underlying that
depositary share, to all rights and preferences of the preferred stock
underlying that depositary share. Those rights include dividend, voting,
redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares
will be deposited with a depositary under a deposit agreement between us, the
depositary and the holders of the depositary receipts evidencing the depositary
shares. The depositary will be a bank or trust company selected by us. The
depositary will also act as the transfer agent, registrar and dividend
disbursing agent for the depositary shares.
Holders of depositary receipts agree to be bound by the
deposit agreement, which requires holders to take certain actions such as filing
proof of residence and paying certain charges.
The following is a summary of the most important terms of the
depositary shares. The deposit agreement, our Restated Certificate of
Incorporation and the certificate of amendment for the applicable series of
preferred stock that are, or will be, filed with the SEC will set forth all of
the terms relating to the depositary shares.
DIVIDENDS
The depositary will distribute all cash dividends or other
cash distributions received in respect of the series of preferred stock
underlying the depositary shares to the record holders of depositary receipts in
proportion to the number of depositary shares owned by those holders on the
relevant record date. The record date for the depositary shares will be the same
date as the record date for the preferred stock.
In the event of a distribution other than in cash, the
depositary will distribute property received by it to the record holders of
depositary receipts that are entitled to receive the distribution. However, if
the depositary determines that it is not feasible to make the distribution, the
depositary may, with our approval, adopt another method for the distribution.
The method may include selling the property and distributing the net proceeds to
the holders.
LIQUIDATION PREFERENCE
In the event of our voluntary or involuntary liquidation,
dissolution or winding up, the holders of each depositary share will be entitled
to receive the fraction of the liquidation preference accorded each share of the
applicable series of preferred stock, as set forth in the applicable prospectus
supplement.
REDEMPTION
If a series of preferred stock underlying the depositary
shares is subject to redemption, the depositary shares will be redeemed from the
proceeds received by the depositary resulting from the redemption, in whole or
in part, of preferred stock held by the depositary. Whenever we redeem any
preferred stock held by the depositary, the depositary will redeem, as of the
same redemption date, the number of depositary shares representing the preferred
stock so redeemed. The depositary will mail the notice of redemption to the
record holders of the depositary receipts promptly upon receiving the notice
from us and not less than 35 nor more than 60 days prior to the date fixed for
redemption of the preferred stock and the depositary shares.
VOTING
Upon receipt of notice of any meeting at which the holders of
preferred stock are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the depositary
receipts underlying the preferred stock. Each record holder of those depositary
receipts on the record date will be entitled to instruct the depositary as to
the exercise of the voting rights pertaining to
12
the amount of preferred stock underlying that holder's depositary shares. The
record date for the depositary shares will be the same date as the record date
for the preferred stock. The depositary will try, as far as practicable, to vote
the preferred stock underlying the depositary shares in accordance with the
instructions of the holders of the depositary receipts. We will agree to take
all action which may be deemed necessary by the depositary in order to enable
the depositary to do so. The depositary will not vote the preferred stock to the
extent that it does not receive specific instructions from the holders of
depositary receipts.
WITHDRAWAL OF PREFERRED STOCK
Owners of depositary shares are entitled, upon surrender of
depositary receipts at the principal office of the depositary and payment of any
unpaid amount due the depositary, to receive the number of whole shares of
preferred stock underlying the depositary shares. Partial shares of preferred
stock will not be issued. These holders of preferred stock will not be entitled
to deposit the shares under the deposit agreement or to receive depositary
receipts evidencing depositary shares for the preferred stock.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary
shares and any provision of the deposit agreement may be amended at any time and
from time to time by agreement between us and the depositary. However, any
amendment which materially and adversely alters the rights of the holders of
depositary shares, other than any change in fees, will not be effective unless
the amendment has been approved by at least a majority of the depositary shares
then outstanding. The deposit agreement may be terminated by us or the
depositary only if:
- all outstanding depositary shares have been redeemed or
- there has been a final distribution in respect of the
preferred stock in connection with our dissolution and such
distribution has been made to all the holders of depositary
shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. We
will also pay charges of the depositary in connection with the initial deposit
of the preferred stock and the initial issuance of the depositary shares, any
redemption of the preferred stock and all withdrawals of preferred stock by
owners of depositary shares. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and certain other charges as
provided in the deposit agreement to be for their accounts. In certain
circumstances, the depositary may refuse to transfer depositary shares, may
withhold dividends and distributions and sell the depositary shares evidenced by
the depositary receipt if the charges are not paid.
REPORTS TO HOLDERS
The depositary will forward to the holders of depositary
receipts all reports and communications we deliver to the depositary that we are
required to furnish to the holders of the preferred stock. In addition, the
depositary will make available for inspection by holders of depositary receipts
at the principal office of the depositary, and at other places as it may from
time to time deem advisable, any reports and communications we deliver to the
depositary as the holder of preferred stock.
LIABILITY AND LEGAL PROCEEDINGS
Neither we nor the depositary will be liable if either of us
are prevented or delayed by law or any circumstance beyond our control in
performing our respective obligations under the deposit agreement. Our
obligations and those of the depositary will be limited to performance in good
faith of our respective duties under the deposit agreement. Neither we nor the
depositary will be obligated to prosecute or defend any legal proceeding in
respect of any depositary shares or preferred stock unless satisfactory
indemnity is furnished. We and the depositary may rely on written advice of
counsel or accountants, on information provided by holders of depositary
receipts or other persons believed in good faith to be competent to give such
information and on documents believed to be genuine and to have been signed or
presented by the proper party or parties.
13
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering a notice
to us of its election to do so. We may remove the depositary at any time. Any
such resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. The successor depositary must
be appointed within 60 days after delivery of the notice for resignation or
removal. In addition, the successor depositary must be a bank or trust company
having its principal office in the United States of America and having a
combined capital and surplus of at least $150,000,000.
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
Owners of the depositary shares will be treated for United
States Federal income tax purposes as if they were owners of the preferred stock
underlying the depositary shares. Accordingly, the owners will be entitled to
take into account for United States Federal income tax purposes income and
deductions to which they would be entitled if they were holders of the preferred
stock. In addition:
- no gain or loss will be recognized for United States Federal
income tax purposes upon the withdrawal of preferred stock in
exchange for depositary shares;
- the tax basis of each share of preferred stock to an
exchanging owner of depositary shares will, upon the exchange,
be the same as the aggregate tax basis of the depositary
shares exchanged; and
- the holding period for preferred stock in the hands of an
exchanging owner of depositary shares will include the period
during which the person owned the depositary shares.
COMMON STOCK
As of the date of this prospectus, we are authorized to issue
up to 300,000,000 shares of common stock, $1.00 par value per share. As of
December 4, 2003, 227,265,870 shares of common stock were outstanding.
DIVIDENDS
Holders of common stock are entitled to receive dividends, in
cash, securities, or property, as may from time to time be declared by our board
of directors, subject to the rights of the holders of the preferred stock.
VOTING
Each holder of common stock is entitled to one vote per share
on all matters requiring a vote of the stockholders.
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation,
dissolution, or winding up, the holders of common stock will be entitled to
share equally in our assets available for distribution after payment in full of
all debts and after the holders of preferred stock have received their
liquidation preferences in full.
MISCELLANEOUS
Shares of common stock are not redeemable and have no
subscription, conversion or preemptive rights.
WARRANTS
We may issue warrants for the purchase of debt securities,
preferred stock or common stock. Warrants may be issued independently or
together with our debt securities, preferred stock or common stock and may be
attached to or separate from any offered securities. Each series of warrants
will
14
be issued under a separate warrant agreement to be entered into between us and a
bank or trust company, as warrant agent. The warrant agent will act solely as
our agent in connection with the warrants and will not have any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants. A copy of the warrant agreement will be filed with the SEC in
connection with the offering of warrants.
The prospectus supplement relating to a particular issue of
warrants will describe the terms of those warrants, including the following:
- the title of the warrants;
- any offering price for the warrants;
- the aggregate number of the warrants;
- the designation and terms of the securities that may be
purchased upon exercise of the warrants;
- if applicable, the designation and terms of the securities
together with which the warrants are issued and the number of
warrants issued with each security;
- any date from and after which the warrants and any
securities issued with them will be separately transferable;
- the principal amount of or number of shares of stock that
may be purchased upon exercise of a warrant and the price at
which the debt securities may be purchased upon exercise;
- the dates on which the right to exercise the warrants will
commence and expire;
- any minimum or maximum amount of the warrants that may be
exercised at any one time;
- the currency or currency units in which the offering price
and the exercise price are payable;
- if applicable, a discussion of material United States
Federal, or other income tax considerations;
- any antidilution provisions of the warrants;
- any redemption or call provisions applicable to the
warrants;
- any additional terms of the warrants, including terms,
procedures, and limitations relating to the exchange and
exercise of the warrants;
- whether the warrants represented by the warrant certificates
or debt securities that may be issued upon exercise of the
warrants will be issued in registered or bearer form; and
- any information with respect to book-entry procedures.
PLAN OF DISTRIBUTION
We may sell the securities in any of four ways:
(1) directly to purchasers; (3) through underwriters; or
(2) through agents; (4) through dealers.
We may solicit offers to purchase securities directly or by
the means of designated agents from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act of
1933, involved in the offer or sale of the securities in respect of which this
prospectus is delivered will be named, and any commissions payable by us to such
agent will be set forth, in the
15
prospectus supplement. Unless otherwise indicated in the prospectus supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment. Agents may be customers of, engage in transactions with, or perform
services for, us in the ordinary course of business.
If we utilize an underwriter or underwriters, we will enter
into an underwriting, purchase or agency agreement with such underwriters at the
time of sale to them. The names of the underwriters and the terms of the
transaction will be set forth in the prospectus supplement.
If we utilize a dealer in the sale of the securities in
respect of which this prospectus is delivered, we will sell such securities to
such dealer, as principal. The dealer may then resell such securities to the
public at varying prices to be determined by such dealer at the time of resale.
Agents, underwriters and dealers may be entitled under the
relevant agreements to indemnification by us against certain liabilities,
including liabilities under the Securities Act of 1933.
We may permit agents or underwriters to solicit offers to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on the date stated in the prospectus supplement. Each
delayed delivery contract will be for an amount not less than, and unless we
otherwise agree the principal amount of securities sold pursuant to delayed
delivery contract shall be not more than, the respective amounts stated in the
prospectus supplement. Each delayed delivery contract shall be subject to our
approval. Delayed delivery contracts will not be subject to any conditions
except that the purchase of the covered securities shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which the purchasing institution is subject. We will pay the commission
indicated in the prospectus supplement to underwriters or agents soliciting
purchases of securities pursuant to delayed delivery contracts we accept.
The place and time of delivery for the securities in respect
of which this prospectus is delivered will be set forth in the prospectus
supplement.
LEGAL OPINIONS
The legality of the securities in respect of which this
Prospectus is being delivered will be passed on for us by Robert F. Gerkens,
Esq., Assistant General Counsel and Assistant Corporate Secretary of the Company
and for any underwriters by Cravath, Swaine & Moore LLP, Worldwide Plaza, 825
Eighth Avenue, New York, New York 10019. We pay a salary to Mr. Gerkens in his
indicated capacity, he is a participant in various employee benefit plans
offered to our employees generally, and he owns shares of our common stock and
participates in our long-term incentive program, which entitles executives to
stock options and deferred stock units. Cravath, Swaine & Moore LLP from time to
time acts as special counsel for the Company.
EXPERTS
The consolidated financial statements and schedule of Air
Products and Chemicals, Inc. as of September 30, 2003 and 2002, and for the
years then ended have been incorporated by reference herein in reliance upon the
reports of KPMG LLP, independent accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
The audit report covering September 30, 2003 consolidated
financial statements contains an explanatory paragraph that refers to KPMG LLP's
audit of the adjustments that were applied to revise the fiscal 2001
consolidated financial statements, as more fully described in Notes 1 and 10 to
the consolidated financial statements. However, they were not engaged to audit,
review or apply procedures to the fiscal 2001 consolidated financial statements
other than with respect to such adjustments and disclosures.
The consolidated financial statements and schedule of Air
Products and Chemicals, Inc. for the year ended September 30, 2001 included in
the Annual Report on Form 10-K for the year ended September 30, 2003,
incorporated herein by reference, have been audited by Arthur Andersen LLP, our
former accountants. You have no effective remedy against Arthur Andersen in
connection with a material misstatement or omission in those financial
statements, particularly in the event that Arthur Andersen
16
ceases to exist as an entity or becomes insolvent as a result of the conviction
or other proceedings against it. For more information concerning Arthur Andersen
LLP, see "The Company" in this Prospectus.
17
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration Fee....................................................................... $ 80,900
Printing Fees.......................................................................... 10,000*
Accountants' Fees...................................................................... 25,000*
Rating Agency Fees..................................................................... 220,000*
Fees and Expenses of trustee........................................................... 5,000*
Miscellaneous.......................................................................... 5,100*
Total......................................................................... $346,000*
-------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law gives corporations
the power to indemnify officers and directors under certain circumstances.
Article Ninth of our Restated Certificate of Incorporation
contains provisions which provide for indemnification of certain persons
(including officers and directors). The Restated Certificate of Incorporation is
filed as an exhibit to our Annual Report on Form 10-K for the fiscal year ended
September 30, 1987.
We maintain insurance that generally insures our officers and
directors and the officers and directors of our subsidiaries (as defined in the
insurance policy) against liabilities incurred in their professional capacities,
and insures us with respect to amounts to which officers and directors become
entitled as indemnification payments from us, subject to certain specified
exclusions and deductible and maximum amounts. We also maintain an insurance
policy that protects, among others, certain of our officers and directors and
certain of the officers and directors of our subsidiaries against liabilities
incurred for Breach of Fiduciary Duty (as defined in the insurance policy) with
respect to their performance of their duties and responsibilities in connection
with certain of our pension and retirement plans, or the plans of certain of our
subsidiaries, subject to certain specified exclusions and deductible and maximum
amounts.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement:
Exhibit 1 --Form of Agency Agreement. (Incorporated by reference
to Exhibit 1 to the Company's Registration Statement No.
333-33851.)
Exhibit 3.1 --By-Laws of the Company. (Incorporated by reference to
Exhibit 3.1 to the Company's Form 8-K Report dated
September 18, 1997.)
Exhibit 3.2 --Restated Certificate of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.2 to the
Company's Form 10-K Report for the fiscal year ended
September 30, 1987.)
Exhibit 3.3 --Amendment to the Restated Certificate of Incorporation
of the Company dated January 25, 1996. (Incorporated by
reference to Exhibit 3.3 to the Company's Form 10-K
Report for the fiscal year ended September 30 1996.)
Exhibit 4.1 --Indenture dated as of January 10, 1995, between the
Company and Wachovia Bank, National Association
(formerly, First Fidelity Bank, National Association),
as Trustee. (Incorporated by reference to Exhibit 4(a)
to the Company's Registration Statement No. 33-57357.)
Exhibit 4.2 --Form of Fixed Rate Medium-Term Note. (Incorporated by
reference to Exhibit 4(b) to the Company's Registration
Statement No. 333-33851.)
Exhibit 4.3 --Form of Floating Rate Medium-Term Note. (Incorporated
by reference to Exhibit 4(c) to the Company's
Registration Statement No. 333-33851.)
Exhibit 4.4 --Form of Fixed Rate Currency Indexed Medium-Term Note.
(Incorporated by reference to Exhibit 4(d) to the
Company's Registration Statement No. 333-33851.)
Exhibit 4.5 --Form of S&P 500 Linked Medium-Term Note. (Incorporated
by reference to
18
Exhibit 4(e) to the Company's Registration Statement No.
333-33851.)
Exhibit 4.6 --Form of senior debt security (contained in Exhibit
4.1).
Exhibit 4.7 --Form of Preferred Stock Certificate. (To be filed as
an exhibit to a current report of the Company and
incorporated by reference in this registration
statement)
Exhibit 4.8 --Form of Deposit Agreement. (To be filed as an exhibit
to a current report of the Company and incorporated by
reference in this registration statement)
Exhibit 4.9 --Form of Deposit Receipt. (To be filed as an exhibit to
a current report of the Company and incorporated by
reference in this registration statement)
Exhibit 4.10 --Form of Warrant Agreement. (To be filed as an exhibit
to a current report of the Company and incorporated by
reference in this registration statement)
Exhibit 4.11 --Form of Warrant Certificate. (To be filed as an
exhibit to a current report of the Company and
incorporated by reference in this registration
statement)
Exhibit 4.12 --Rights Agreement, dated as of 19 March 1998, between
the Company and First Chicago Trust Company of New York.
(Incorporated by reference to Exhibit 1 to the Company's
Form 8-A Registration Statement dated 19 March 1998, as
amended by Form 8-A/A dated 16 July 1998.)
Exhibit 5 --Opinion of Company counsel as to legality of the
securities to be issued.
Exhibit 12 --Computation of Ratios of Earnings to Fixed Charges
(Incorporated by reference to Exhibit 12 to the
Company's Annual Report on Form 10-K for the year ended
September 30, 2003.)
Exhibit 23.1 --Consent of KPMG LLP.
23.2 --Consent of Company counsel (contained in Exhibit 5).
Exhibit 24 --Power of Attorney.
Exhibit 25 --Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Wachovia Bank,
National Association, as trustee under the senior
indenture.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Allentown and Commonwealth of Pennsylvania on the 9th
day of January, 2004.
AIR PRODUCTS AND CHEMICALS, INC.
(Issuer)
By /s/ JOHN R. OWINGS
--------------------------------------
(John R. Owings, Vice President and
Chief Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on January 9, 2004.
SIGNATURE TITLE
--------- -----
/s/ JOHN P. JONES III Director and Chairman, President and Chief
------------------------------- Executive Officer (Principal Executive Officer)
(John P. Jones III)
/s/ PAUL E. HUCK Vice President and Corporate Controller (Principal
------------------------------- Accounting Officer)
(Paul E. Huck)
* Director
-------------------------------
(Mario L. Baeza)
* Director
-------------------------------
(Michael J. Donahue)
* Director
-------------------------------
(Ursula F. Fairbairn)
20
* Director
-------------------------------
(W. Douglas Ford)
* Director
-------------------------------
(Edward E. Hagenlocker)
* Director
-------------------------------
(James F. Hardymon)
* Director
-------------------------------
(Terrance Murray)
* Director
-------------------------------
(Charles H. Noski)
* Director
-------------------------------
(Paula G. Rosput)
* Director
-------------------------------
(Lawrason D. Thomas)
* W. Douglas Brown, Vice President, General Counsel and Secretary, by signing
his name hereto, does sign this document on behalf of the above noted
individuals, pursuant to a power of attorney duly executed by such
individuals which is filed with the Securities and Exchange Commission
herewith.
/s/ W. DOUGLAS BROWN
--------------------------------
(W. Douglas Brown
Attorney-in-Fact)
21