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AIRGAS, INC.
BY-LAWS
(AMENDED AND RESTATED NOVEMBER 29, 1994)
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ARTICLE I
OFFICES
Section 1.
The registered office of the Corporation in the State of Delaware shall
be in the City of Wilmington, County of New Castle, State of Delaware.
The Corporation shall have offices at such other places as the Board of
Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS
Section 1: Annual Meeting
The annual meeting of the stockholders for the election of Directors and
for the transaction of such other business as may properly come before the
meeting shall be held on such date within five (5) months after the end of the
fiscal year of the Corporation as the Board of Directors shall each year fix.
Each such annual meeting shall be held at such place, within or without the
State of Delaware, and hour as shall be determined by the Board of Directors.
The day, place and hour of each annual meeting shall be specified in the
notice of annual meeting.
The meeting may be adjourned from time to time and place to place until
its business is completed.
At the annual meeting of the stockholders, only such business shall be
conducted as shall have been specified in the notice of meeting. To be
properly brought before an annual meeting, business must (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (c) otherwise properly
brought before the meeting by a stockholder. For business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation, not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that in the event that less than seventy days' notice or prior public
disclosure of the date of the meeting is given or made to stockholder, notice
by the stockholder to be timely must be so received not later than the close
of business on the tenth day following the date on which such notice of the
date of the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall be set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting,
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(b) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of
the Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding
anything in the By-Laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section I. The presiding officer of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of this
Section I, and if he should so determine, he shall so declare to the meeting
that any such business not properly brought before the meeting shall not be
transacted.
Section 2. Special Meetings.
Except as otherwise required by law and subject to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or on liquidation, special meeting of the stockholders
may be called only by the Chairman of the Board, the President, the Board of
Directors pursuant to a resolution approved by a majority of the entire
Board of Directors, or pursuant to the request of holders of 33% of the
combined voting power of the then outstanding shares of stock entitled to vote
generally in the election of Directors, voting together as a single class.
Section 3. Stockholder Action.
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such
holders.
Section 4. Notice of Meeting.
Except as otherwise provided by statute, written or printed notice
stating the place, day and hour of the meeting and, in case of a special
meeting, stating the purpose or purposes for which the meeting is called,
shall be delivered not less than 10 nor more than 60 days before the date of
the meeting, either personally or by mail, by or at the direction of the
Secretary, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail in a sealed envelope addressed to the stockholder at his
last known post office address as it appears on the stock record books
of the corporation, with postage thereon prepaid.
Attendance of a person at a meeting of stockholders, in person or by
proxy, constitutes a waiver of notice of the meeting, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened.
Section 5. Quorum.
Except as otherwise required by law, the Certificate of Incorporation or
these By-Laws, the holders of a majority of the shares entitled to vote at any
meeting of the stockholders, present, in person or by proxy, shall constitute
a quorum and the act of the majority of such quorum shall be deemed the act of
the stockholders.
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If a quorum shall fail to attend any meeting, the chairman of the meeting
may adjourn the meeting to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then, except as otherwise required by
law, those present at such adjourned meeting shall constitute a quorum and all
matters shall be determined by a majority of votes cast at such meeting.
Section 6. Qualification of Voters.
The Board of Directors (hereinafter sometimes referred to as the "Board")
may fix a day and hour not more than sixty nor less then ten days prior to the
day of holding any meeting of the stockholders at the time of which the
stockholders entitled to notice of and to vote at such meeting shall be
determined. Only those persons who were holders of record of voting stock
at such time shall be entitled to notice of and to vote at such meeting.
Section 7. Procedure.
The order of business and all other matters of procedure at every meeting
of the stockholders may be determined by the presiding officer.
Section 8. Voting Lists.
The officer or agent having charge of the transfer book for shares of the
Corporation shall prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall be produced and kept at the time and
place of the meeting during the whole time thereof and may be inspected by any
stockholder present. The original share or stock ledger or transfer book or a
duplicate thereof, shall be the only evidence as to who are the stockholders
entitled to examine such list or share ledger or transfer book or to vote
at any meeting of stockholders.
Section 9. Voting and Proxies.
Each holder of Common Stock shall be entitled to one vote per share held
of record upon each matter on which stockholders generally are entitled to
vote.
At all meetings of stockholders, a stockholder entitled to vote may vote
in person or by proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. Such proxy shall be filed with the Secretary of
the Corporation before or at the time of the meeting. Unless otherwise
provided by law, all questions touching the validity or sufficiency of the
proxies shall be decided by the Secretary.
Directors shall be elected by a plurality of the votes cast at an
election.
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All other action (unless a greater plurality is required by law or by the
Certificates of Incorporation or by these By-Laws) shall be authorized by a
majority of the votes cast by the holders of shares entitled to vote thereon,
present in person or represented by proxy, and where a separate vote by class
is required, by a majority of the votes cast by the stockholders of such
class, present in person or presented by proxy.
SECTION 10. Notification of Nomination of Directors.
Nominations for election to the Board of Directors of the Corporation at
a meeting of stockholders may be made by the Board of Directors or by any
stockholder of the Corporation entitled to vote for the election of directors
at such meeting who complies with the notice procedures set forth in this
Section 10. Such nominations, other than those made by or on behalf of the
Board of Directors, may be made only if notice in writing is personally
delivered to, or mailed by first class United States mail, postage prepaid,
and received by, the Secretary of the Corporation not less than sixty days nor
more than ninety days prior to such meeting; provided, however, that if less
than seventy days notice or prior public disclosure of the date of the
meeting is given to stockholders, such nomination shall have been mailed by
first class United States mail, postage prepaid, and received by, or
personally delivered to, the Secretary of the Corporation not later than the
close of business on the tenth day following the day on which notice of the
date of the meeting was mailed or such public disclosure was made, whichever
occurs first. Such notice shall set forth (a) as to each proposed nominee (i)
the name, age, business address and, if known, residence address of each such
nominee, (ii) the principal occupation or employment of each such nominee,
(iii) the number of shares, if any, of stock of the Corporation that are
beneficially owned by each such nominee and (iv) any other information
concerning the nominee that must be disclosed in proxy solicitations pursuant
to the proxy rules of the Securities and Exchange Commission if such person
had been nominated, or intended to be nominated, by the Board of Directors
(including such person's written consent to be named as a nominee and to serve
as a director if elected); and (b) as to the stockholder giving the notice
(i) the name and address, as they appear on the Corporation's books, of such
stockholder (ii) a representation that such stockholder is a holder of record
of shares of stock of the Corporation entitled to vote at the meeting and the
class and number of shares of the Corporation which are beneficially owned by
such stockholder, (iii) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice and (iv) a description of all arrangements or
understandings between such stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such stockholder. The Corporation also may
require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a director of the Corporation. The
presiding officer of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
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ARTICLE III
DIRECTORS
Section 1. Number, Election and Terms.
Except as otherwise fixed pursuant to the provisions of Article 4 of the
Certificate of Incorporation relating to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under specified
circumstances, the number of Directors shall consist of no less than
seven and no more than thirteen members, as shall be specifically determined
from time to time by resolution of the Board of Directors. The Directors,
other than those who may be elected by the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, one class to hold office initially for a term expiring at the annual
meeting of stockholders to be held in 1987, another class to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 1988, and a third class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1989, with the members of each
class to hold office until their successors are elected and qualified. At
each annual meeting of stockholders, the successors or the class of Directors
whose term expires at the meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in third year following
the year of their election.
The term "entire Board" as used in these By-Laws means the total number
of Directors which the Corporation would have if there were no vacancies.
Subject to the rights of holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of Directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally.
Section 2. Powers.
The business, property and affairs of the Corporation shall be managed by
or under the direction on its Board of Directors, which shall have and may
exercise all the powers of the Corporation of Incorporation, or by these
By-Laws, directed or required to be exercised or done by the stockholders.
Section 3. Vacancies.
Except as otherwise fixed pursuant to the provisions of Article 4 of the
Certificate of Incorporation relating to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect Directors under specified
circumstances, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be fill solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board of Directors. Any director
elected in accordance with the preceding sentence shall hold office until the
next annual meeting of stockholders. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
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Section 4. Removal.
Subject to the rights of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect Directors
under specified circumstances, any Director may be removed from office,
without cause only by the affirmative vote of the holders of 67% of the
combined voting power of the then outstanding shares of stock entitled to vote
generally in the election of Directors, voting together as a single class.
Section 5. Regular Meetings.
Regular meetings of the Board shall be held at such times and places as
the Board may from time to time determine.
Section 6. Special Meetings.
Special meetings of the Board may be called at any time, at any place and
for any purpose by the Chairman of the Executive Committee, the Chairman of
the Board, or the President, or by any officer of the Corporation upon the
request of a majority of the entire Board.
Section 7. Notice of Meeting.
Notice of regular meetings of the Board need not be given.
Notice of every special meeting of the Board shall be given to each
Director at his usual place of business, or at such other address as shall
have been furnished by him for the purpose. Such notice shall be given at
least twenty-four hours before the meeting by telephone or by being personally
delivered, mailed, or telegraphed. Such notice need not include a statement
of the business to be transacted at, or the purpose of, any such meeting.
Section 8. Quorum.
Except as may be otherwise provided by law or in these By-Laws, the
presence of a majority of the entire Board shall be necessary and sufficient
to constitute a quorum for the transaction of business at any meeting of the
Board, and the act of a majority of such quorum shall be deemed the act of the
Board.
Section 9. Powers.
Members of the Board, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence
in person at such meeting.
Section 10. Action Without a Meeting.
Action required or permitted to be taken pursuant to authorization voted
at a meeting of the Board, or a committee thereof, may be taken without a
meeting if, before or after the action, all members of the Board or of the
Committee consent thereto in writing. The written consents shall be filed
with the minutes of the proceedings of the Board or Committee. The consent
shall have the same effect as a vote of the Board or Committee thereof for all
purposes.
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Section 11. Compensation of Directors.
Directors shall receive such compensation for their services as shall be
determined by a majority of the entire Board provided that Directors who are
serving the Corporation as officers or employees and who receive compensation
for their services as such officers or employers shall not receive any salary
or other compensation for their services as Directors.
ARTICLE IV
OFFICERS
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a
President, such number of vice presidents as the Board may from time to time
determine, a Secretary and a Treasurer. The Chairman of the Board shall be
the chief executive officer unless the Board shall otherwise determine. The
Chairman of the Board or, in his absence, or if such office be vacant the
President, shall preside at all meetings of the stockholders and of the Board.
Any person may hold two or more offices at the same time. The Chairman of the
Board and the President shall be members of the Board of Directors, but the
other officers need not be members of the Board.
Section 2. Election and Term of Office.
The officers of the Corporation shall be elected annually by the Board at
this first meeting of the Board held after the annual meeting of stockholders.
If the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as the same can conveniently be held. Each
officer, except such officers may be elected or appointed in accordance with
the provisions of Section 3 of Article IV, shall hold his office until his
successor shall have been duly elected and shall have qualified or until his
death, resignation or removal.
All officer, agents and employees of the Corporation shall hold their
respective offices or positions at the pleasure of the Board of Directors and
may be removed at any time by the Board of Directors with or without cause.
Section 3. Duties.
The officers, agents and employees shall perform the duties and exercise
the powers actually incident to the offices or positions held by them
respectively, and/or such other duties and powers as may be assigned to them
from time to time by the Board of Directors.
ARTICLE V
EXECUTIVE COMMITTEE
Section 1. Election.
At any meeting of the Board, an Executive Committee, composed of the
Chairman of the Board, the President, and not less than two other members, may
be elected by a majority vote of the entire Board to serve until the Board
shall otherwise determine. Either the Chairman of the Board or the President,
whichever is the chief executive officer, shall be the Chairman of the
Executive Committee, and the other shall be the Vice Chairman thereof, unless
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the Board shall otherwise determine. Members of the Executive Committee shall
be members of the Board.
Section 2. Powers.
The Executive Committee shall have and may exercise all of the powers of
the Board of Directors when the board is not in session, except that it shall
have no power to (a) elect directors or officers; (b) alter, amend or repeal
these By-Laws or any resolution or resolutions of the Board of Directors
relating to the Executive Committee; (c) declare any dividend or make any
other distribution to the stockholders of the Corporation; (d) appoint any
member of the Executive Committee, (e) take any other action which legally
may be taken only by the Board or (f) approve the acquisition of
substantially all the assets or capital stock of a corporation or business
entity which has annual sales in excess of twenty percent (20%) of the annual
sales of the Corporation as of the date of such approval.
Section 3. Vacancies.
Vacancies in the Executive Committee may be filled at any time by a
majority vote of the entire Board.
Section 4. Other Committees.
The Board may designate one or more other committees, each consisting of
one or more directors of the Corporation as members and one or more directors
as alternate members, with such power and authority as prescribed in the
By-Laws or as provided in a resolution adopted by a majority of the entire
Board. Each Committee, and each member thereof, shall serve at the pleasure
of the Board.
ARTICLE VI
LIABILITY OF DIRECTORS
A Director of the Corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the Director derived
any improper personal benefit. If the Delaware General Corporation Law is
hereafter amended to authorize the further elimination or limitation of the
liability of a Director, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the amended
Delaware General Corporation Law.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or
modification.
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ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 1.
The Corporation shall indemnify to the full extent permitted by, and in
the manner permissible under, the laws of the State of Delaware any person
made, or threatened to be made, a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that
he, his testator or intestate is or was a director or officer of the
Corporation or any predecessor of the Corporation, or served any other
enterprise as a director or officer at the request of the Corporation or any
predecessor of the Corporation.
Section 2. General.
The foregoing provisions of this Article VI shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while this By-Law is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts.
The foregoing rights of indemnification shall not be deemed exclusive of
any other rights to which any director or officer may be entitled apart from
the provisions of this Article.
The Board of Directors in its discretion shall have the power on behalf
of the Corporation to indemnify any person, other than a director or officer,
made a party to any action, suit or proceeding by reason of the fact that he,
his testator or intestate, is or was an employee of the Corporation.
ARTICLE VIII
CAPITAL STOCK
Section 1. Certificates of Stock.
The certificates for shares of the capital stock of the Corporation shall
be in such form as shall be approved by the Board. The certificates shall be
signed by the Chairman of the Board, the President, and also the Treasurer or
the Secretary, and may be sealed with the seal of the Corporation, or a
facsimile thereof.
The signatures of the aforesaid officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation or its employee. The validity of any stock
certificate of the Corporation signed and executed by or in the name of duly
qualified officers of the Corporation shall not be affected by the subsequent
death, resignation, or the ceasing for any other reason of any such officer to
hold such office, whether before or after the date borne by or the actual
delivery of such certificate.
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The name of the person owning the shares represented thereby, with the
number of such shares and the date of issue, shall be entered on the
Corporation's capital stock records.
All certificates surrendered to the Corporation shall be cancelled, and
no new certificates shall be issued until the former certificate for the same
number of shares shall have been surrendered and canceled except in case of a
lost or destroyed certificate.
The Corporation may treat the holder of record or any share or shares of
stock as the holder in fact thereof, and shall not be bound to recognize any
equitable or other claim to interest in any such share or shares on the part
of any other person, whether or not it shall express or other notice thereof,
save as expressly provided by law.
Section 2. Lost, Stolen or Destroyed Certificates.
The Corporation may issue a new certificate for shares in place of a
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Board may require the owner of the lost or destroyed
certificate, or his legal representative, to give the Corporation a bond in
form satisfactory to the Corporation sufficient to indemnify the Corporation,
its transfer agents and registrars against any claim that may be made against
them on account of the alleged lost or destroyed certificate or the issuance
of such a new certificate.
Section 3. Transfer of Shares.
Shares of the capital stock of the Corporation shall be transferable by
the owner thereof in person or by duly authorized attorney, upon surrender of
the certificates therefore properly endorsed. The Board, at its option, may
appoint a transfer agent and registrar, or one or more transfer agents and one
or more registrars, or either, for the stock of the Corporation.
Section 4. Regulations.
The Board shall have power and authority to make all such rules and
regulations as they may deem expedient concerning the issue, transfer and
registration of certificates for shares of the capital stock of the
Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments of By-Laws.
Subject to the provisions of the Certificate of Incorporation, these
By-Laws may be altered, amended or repealed at any regular meeting of the
stockholders (or at any special meeting thereof duly called for that purpose)
by a majority vote of the shares represented and entitled to vote at such
meeting; provided that in the notice of such special meeting notice of
such purpose shall be given. Subject to the laws of the State of Delaware,
the Certificate of Incorporation and these By-Laws, the Board of Directors may
by majority vote of those present at any meeting at which a quorum is present
amend these By-Laws, or enact such other By-Laws as in their judgment may be
advisable for the regulation of the conduct of the affairs of the Corporation.
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ARTICLE X
CORPORATE SEAL
The corporate seal of the Corporation shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal 1986-Delaware." Said
seal may be used by causing it or a facsimile or equivalent thereof to be
impressed or affixed or reproduced, and shall be in the custody of the
Secretary. If and when so directed by the Board, a duplicate of the seal may
be kept and used by the Treasurer, or by any Assistant Treasurer or Assistant
Secretary.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 1. Dividends.
Dividends upon the outstanding shares of the Corporation may be paid from
any source permitted by law. Dividends may be declared at any regular or
special meeting of the Board and may be paid in cash or other property or in
the form of a stock dividend.
Section 2. Fiscal Year.
The fiscal year of the Corporation shall end on the 31st day of March of
each year, unless otherwise provided by resolution of the Board.
Section 3. Stock in Other Corporation.
Any shares of stock in any other corporation which may from time to time
be held by the Corporation may be represented and voted at any meeting of
stockholders of such corporation by the Chairman or the President of the
Corporation or by any other person or persons thereunto authorized by the
Board, or by any proxy designated by written instrument of appointment
executed in the name of the Corporation either by the Chairman, the President,
or a Vice President, and attested by the Secretary or an Assistant Secretary.
Shares of stock in any other corporation which shares are owned by the
Corporation need not stand in its name, but may be held for its benefit in the
individual name of the Chairman or of any other nominee designated for the
purpose by the Board. Certificates for shares so held for the benefit of the
Corporation shall be endorsed in blank, or have proper stock powers attached
so that said certificates are at all times in due form for transfer, and shall
be held for safekeeping in such manner as shall be determined from time to
time by the Board.
Section 4. Election of Auditors.
The directors shall select independent auditors to audit the books and
records of the Corporation for the current fiscal year, subject to the
approval of the stockholders at the annual meeting. Should the auditors so
elected resign, be removed for good cause shown, or otherwise fail to serve
during or with respect to said year, a majority of the directors shall select
a substitute firm of auditors to serve with respect to said year.