AIRGAS, INC.
EMPLOYEE BENEFITS TRUST AGREEMENT
Effective as of March 30, 1999
TABLE OF CONTENTS
I. Trust, Trustee and Trust Fund
1.1 Trust
1.2 Trustee
1.3 Trust Fund
1.4 Trust Fund Subject to Claims of Creditors
1.5 Definitions
II. Funding of the Trust
2.1 Purchase of Company Stock
2.2 Contributions
2.3 Prepayments
2.4 Dividends
2.5 Adjustments.
III. Procedures for Purchase and Sale of Shares
3.1 Purchase and Sale
3.2 Closing.
3.3 Delivery of Shares
3.4 Company Records
IV. Release and Transfer of Company Stock
4.1 Company Stock Made Available for Transfer
from Trust
4.2 Transfer from Trust of Released Shares and
Cash Proceeds
V. Compensation, Expenses and Tax Withholding
5.1 Compensation and Expenses
5.2 Withholding of Taxes
VI. Administration of Trust Fund
6.1 Management and Control of Trust Fund
6.2 Investment of Funds
6.3 Trustee's Administrative Powers
6.4 Rights Regarding Company Stock
6.5 Indemnification
6.6 General Duty to Communicate to Committee
VII. Duties of Trustee
7.1 Records and Accounts of Trustee
7.2 Reports of Trustee
7.3 Final Statement
VIII. Succession of Trustee
8.1 Resignation of Trustee
8.2 Removal of Trustee
8.3 Appointment of Successor Trustee
8.4 Succession to Trust Fund Assets
8.5 Continuation of Trust
8.6 Changes in Organization of Trustee
8.7 Continuance of Trustee's Powers in Event of
Termination of the Trust
IX. Amendment or Termination
9.1 Amendments
9.2 Termination
9.3 Effect of Termination
9.4 Form of Amendment or Termination.
X. Miscellaneous
10.1 Controlling Law
10.2 Committee Action
10.3 Notices
10.4 Severability
10.5 Protection of Persons Dealing with the Trust
10.6 Tax Status of Trust
10.7 ERISA Status of Trust.
10.8 Registration
10.9 No Third Party Rights; Plan Participants to
Have No Interest in the Company by Reason of
the Trust
10.10 Nonassignability of Trust Interests
10.11 Assignment of Trust
10.12 Merger
10.13 Gender and Plurals
10.14 Counterparts
AIRGAS, INC.
EMPLOYEE BENEFITS TRUST AGREEMENT
THIS TRUST AGREEMENT (the "Agreement"), is made
effective as of March 30, 1999, between Airgas, Inc., a
Delaware corporation (the "Company"), and First Union
National Bank, a national banking association, as Trustee.
W I T N E S S E T H :
WHEREAS, the Company desires to establish a trust
(the "Trust") in accordance with the laws of the State of
Delaware and for the purposes stated in this Agreement;
WHEREAS, the Trustee desires to act as trustee of
the Trust, and to hold legal title to the assets of the
Trust, in trust, for the purposes hereinafter stated and in
accordance with the terms hereof;
WHEREAS, the Company or its subsidiaries have
previously adopted the Plans (as herein defined);
WHEREAS, the Company desires to provide for the
availability of shares of its common stock to satisfy
certain of its obligations under the Plans and intends to
sell to the Trust such assets as shall be held therein,
subject to the claims of the Company's general creditors in
the event of the Company's Insolvency (as defined herein)
until made available to the Plans, in such manner and at
such times as specified herein;
WHEREAS, the Company desires that the assets to be
held in the Trust Fund (as herein defined) should be
principally or exclusively securities of the Company except
as where specifically otherwise provided and, therefore,
expressly waives any diversification of investments that
might otherwise be necessary, appropriate or required
pursuant to applicable provisions of law; and
WHEREAS, the Trustee has been appointed as trustee
and has accepted such appointment as of the date first set
forth above.
NOW, THEREFORE, the parties hereto hereby
establish the Trust and agree that the Trust will be
comprised, held and disposed of as follows:
I
Trust, Trustee and Trust Fund
I.1 Trust. This Agreement and the Trust Fund
shall be known as the Airgas, Inc. Employee Benefits Trust.
The parties intend that the Trust will be an independent
legal entity with title to and power to convey all of its
assets in accordance with the terms of the Trust. The
parties hereto further intend that the Trust not be subject
to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the assets held in the Trust
Fund shall not be "plan assets," as such term is described
in ERISA and Department of Labor regulations thereunder.
The Trust is not a part of any of the Plans and does not
provide pension, welfare or any other benefits to any Plan
Participant (as herein defined). The assets of the Trust
will be held, invested and disposed of by the Trustee, in
accordance with the terms of the Trust. The Trust shall be
irrevocable. No Plan Participant nor any Plan shall have
any preferred claim on, or any beneficial ownership interest
in, any assets of the Trust until made available to the
Plans or otherwise transferred out of the Trust.
I.2 Trustee. The trustee named above, and its
successor or successors, is hereby designated as the trustee
hereunder, to receive, hold, invest, administer and
distribute the Trust Fund in accordance with this Agreement,
the provisions of which shall govern the powers, duties and
responsibilities of the Trustee.
I.3 Trust Fund. The assets held at any time and
from time to time under the Trust collectively are herein
referred to as the "Trust Fund" and shall consist of
contributions received by the Trustee, proceeds of any
loans, investments and reinvestment thereof, the earnings
and income thereon, less disbursements therefrom. Except as
herein otherwise provided, title to the assets of the Trust
Fund shall at all times be vested in the Trustee and
securities that are part of the Trust Fund shall be held in
such manner that the Trustee's name and the fiduciary
capacity in which the securities are held are fully
disclosed, subject to the right of the Trustee to hold title
in bearer form or in the name of a nominee, and the
interests of others in the Trust Fund shall be only the
right to have such assets received, held, invested,
administered and distributed in accordance with the
provisions of the Trust.
I.4 Trust Fund Subject to Claims of Creditors.
Notwithstanding any provision of this Agreement to the
contrary, the Trust Fund shall at all times remain subject
to the claims of the Company's general creditors under
Federal and state law in the event of the Company's
Insolvency (as herein defined).
In addition, the Board of Directors and Chief
Executive Officer of the Company shall have the duty to
inform the Trustee in writing of the Company's Insolvency.
If a person claiming to be a creditor of the Company alleges
in writing to the Trustee that the Company has become
Insolvent, the Trustee shall discontinue transfers of
Released Shares (as herein defined) pursuant to Article 4.
Unless the Trustee has actual knowledge of the
Company's Insolvency, or has received notice from the
Company or a person claiming to be a Company creditor
alleging that the Company is Insolvent, the Trustee shall
have no duty to inquire whether the Company is Insolvent.
The Trustee may in all events conclusively rely on a copy of
a Bankruptcy petition filed with a court.
If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue
transfers of Released Shares pursuant to Article 4 and shall
hold the Trust Fund for the benefit of the Company's general
creditors. Nothing in this Agreement shall in any way
diminish any rights of employees as general creditors of the
Company with respect to benefits due under the Plans or
otherwise.
The Trustee shall resume transfers of Released
Shares pursuant to Article 4 only after it receives a copy
of the court order dismissing such Bankruptcy petition.
Notwithstanding anything herein to the contrary,
in the event that the Company is Insolvent, the Committee
may, in its discretion and to the extent permitted by
applicable law, direct the Trustee to apply the Trust Fund
to satisfy the claims of the Company's creditors.
I.5 Definitions. In addition to the terms
defined in the preceding portions of this Agreement, certain
capitalized terms have the meanings set forth below:
Board of Directors. "Board of Directors" means
the board of directors of the Company or a committee
comprised of members thereof.
Code. "Code" means the Internal Revenue Code of
1986, as amended.
Committee. "Committee" means the Nominating and
Compensation Committee of the Company.
Common Stock Purchase Agreement. "Common Stock
Purchase Agreement" means an agreement between the Company
and the Trustee, substantially in the form attached hereto
as Exhibit 1.
Company Stock. "Company Stock" means shares of
common stock, par value .01 per share, of the Company, or
any successor securities thereto.
Designated Plan Participant. "Designated Plan
Participant" means, as of the date of determination, each
active common-law employee of the Company or an affiliate,
except any member of the Board of Directors of the Company,
who (i) is a holder of unexercised options to purchase
Company Stock (whether or not vested) (an "Optionholder")
under the Airgas, Inc. 1984 and/or 1997 stock option plans
(the "Option Plans") as of the Relevant Date, (ii) is a
participant in the Airgas, Inc. 1998 Employee Stock Purchase
Plan (the "Stock Purchase Plan") and has Company Stock
credited to his or her account on the Purchase Date (as
defined in the Stock Purchase Plan) coincident with or
immediately preceding the Relevant Date (a "Stock Purchase
Plan Participant"); or (iii) is a participant in the Airgas,
Inc. 401(k) Plan and has Company Stock credited to his or
her account on the last day of the calendar quarter
coincident with or immediately preceding the Relevant Date
(a "401(k) Participant").
Effective Date. "Effective Date" means March 30,
1999.
Extraordinary Dividend. "Extraordinary Dividend"
means any dividend or other distribution of cash or other
property (other than Company Stock) made with respect to
Company Stock, which the Board of Directors declares
generally to be other than an ordinary dividend.
Fair Market Value. "Fair Market Value" means as
of any date the closing price on such date (or if such date
is not a trading day, then on the most recent prior date
which is a trading day) of a share of Company Stock as
reported on the composite tape, or similar reporting system,
for issues listed on the New York Stock Exchange (or, if the
Company Stock is no longer traded on the New York Stock
Exchange, on such other national securities exchange on
which the Company Stock is listed or national securities or
central market system upon which transactions in Company
Stock are reported, as either shall be designated by the
Committee for the purposes hereof) or if sales of Company
Stock are not reported in any manner specified above, the
closing price on such date (or if such date is not a trading
day, then on the most recent prior date which is a trading
day) in the over-the-counter market as reported by the
National Association of Securities Dealers Automated
Quotation System or, if not so reported, by the National
Quotation Bureau, Incorporated or similar organization
selected by the Committee.
Insolvency or Insolvent. "Insolvency" or being
"Insolvent" means (i) inability of the Company to pay its
debts as they become due, or (ii) the Company being subject
to a pending proceeding as a debtor under the provisions of
Title 11 of the United States Code (Bankruptcy Code).
Loan. "Loan" means a loan and extension of credit
to the Trust from the Company evidenced by the Note and any
such other loans or increase(s) in principal of the Loan the
proceeds of which are used by the Trustee for additional
purchases of Company Stock.
New Shares. "New Shares" means authorized but
unissued shares of Company Stock, as defined in Section 3.1.
1933 Act. "1933 Act" means the Securities Act of
1933, as amended.
Non-Stock Plans. "Non-Stock Plans" means the
Plans identified as Non-Stock Plans on Schedule A hereto.
Note. "Note" means the Promissory Note for
payment of the purchase price of Company Stock purchased
pursuant to Section 2.1 in the form attached hereto as
Exhibit 2.
Plan Participant. "Plan Participant" means a
participant in any of the Plans.
Plans. "Plans" means the employee benefit plans,
programs, contracts and compensation structures listed on
Schedule A hereto. The list of Plans may be amended from
time to time by the Committee in accordance with Section
9.1.
Released Shares. "Released Shares" shall have the
meaning set forth in Section 4.1.
Relevant Date. "Relevant Date" means with respect
to the exercise of voting rights, the "Record Date" and with
respect to a tender or exchange offer, the "Commencement
Date," each as defined in Section 6.4.
Repurchased Shares. "Repurchased Shares" shall
have the meaning set forth in Section 3.1.
Stock Plans. "Stock Plans" means the Plans
identified as Stock Plans on Schedule A hereto.
Trust Term. "Trust Term" means March 30, 1999
through March 31, 2006.
Trust Year. "Trust Year" or "Fiscal Year" means
each April 1 through March 31 during the Trust Term except
the first Trust Year which shall mean March 30, 1999 through
March 31, 2000.
Trustee. "Trustee" means First Union National
Bank, a national banking association, or any successor
trustee.
Voting Shares. "Voting Shares" means (i) with
respect to an Optionholder, the number of shares of Company
Stock subject to unexercised options held by the
Optionholder on the Record Date, (ii) with respect to a
Stock Purchase Plan Participant, the number of shares of
Company Stock credited to such participant's account under
the Stock Purchase Plan on the Purchase Date (as defined in
the Stock Purchase Plan) immediately preceding the Record
Date and (iii) with respect to a 401(k) Participant, the
number of Shares of Company Stock credited to his or her
account on the last day of the calendar quarter preceding
the Record Date.
II
Funding of the Trust
II.1 Purchase of Company Stock. From time to time
on and after the date hereof, the Trust may purchase from
the Company in accordance with Section 3 hereof a number of
shares of Company Stock that represents up to an aggregate
of 5% of the outstanding shares of Company Stock on the
Effective Date, subject to adjustment as provided for in
Section 2.5, to be administered and disposed of by the
Trustee as provided in Article IV.
II.2 Contributions. For each Trust Year, the
Company shall contribute to the Trust in cash such amount
which, together with dividends, as provided in Section 2.3,
and any other earnings of the Trust, shall enable the
Trustee to make all payments of principal and interest under
the Loan as they come due. Unless otherwise expressly
provided herein, the Trustee shall apply all such
contributions, dividends and earnings to the payment or
prepayment of principal and interest due under the Loan or
to pay, in cash, the aggregate par value of any additional
New Shares purchased by the Trust. If, at the end of any
Trust Year, insufficient contributions have been made in
cash to pay all principal and interest of the loan due in
such Trust Year, such contributions shall be deemed to have
been made in the form of forgiveness of principal and
interest of the Loan to the extent of the Company's failure
to make contributions as required by this Section 2.1. Such
forgiveness shall be the sole and absolute remedy that the
Trust shall have against the Company for any failure of the
Company to make any contribution to the Trust. All
contributions made under the Trust shall be delivered to the
Trustee. The Trustee shall be accountable for all
contributions received by it, but shall have no duty to
require any contributions to be made to it.
The Company in its sole discretion may at any
time, or from time to time, make additional deposits or
contributions of cash or other property to be held under the
Trust by the Trustee to augment the principal to be held,
administered and disposed of by the Trustee as provided in
this Agreement. Neither the Trustee nor any Plan
administrator, Plan Participant or other third party shall
have any right to compel such additional deposits or
contributions.
II.3 Prepayments. The Company may, from time to
time, contribute cash to the Trust in amounts sufficient to
enable the Trustee to prepay, in whole or in part, principal
and interest of the Loan at any time or, in lieu of such
prepayment, the Committee may, from time to time, in
accordance with the terms of the Note direct that all or any
part of such principal and/or interest of the Loan shall be
forgiven and the payment so directed shall be forgiven. The
Trustee shall use all such cash to prepay principal and/or
interest on the Loan in accordance with the terms of the
Note.
II.4 Dividends. Except as otherwise provided in
this paragraph, dividends paid in any Trust Year in cash on
Company Stock held by the Trust (including dividends paid on
Released Shares that have not been transferred out of the
Trust at the time of such dividend payment) shall be
applied, immediately upon receipt thereof by the Trustee,
(i) first to interest accrued and unpaid on the Loan as of
the date of any such payment and then, (ii) to the extent
that any such payment exceeds such accrued and unpaid
interest on the Loan, to prepay interest that accrues on the
Loan after such payment through the end of such Trust Year,
and then, (iii) to pay principal installments due on the
Loan within such Trust Year and then, (iv) to additional
installments of principal in the order of their scheduled
maturity. Extraordinary Dividends shall not be used to pay
interest on or principal of the Loan, but shall be invested
in additional Company Stock, as soon as practicable, except
as otherwise provided in this Trust Agreement. Dividends
which are not in cash or in Company Stock (including
Extraordinary Dividends, or portions thereof) shall be
reduced to cash by the Trustee and reinvested in Company
Stock as soon as practicable, except as otherwise provided
in this Trust Agreement. Company Stock purchased with the
proceeds of an Extraordinary Dividend or with the proceeds
of a non-cash dividend shall, for purposes of this Agreement
(including, without limitation, Section 4.1 hereof), be
deemed to have been acquired with the proceeds of the Loan;
and if, and to the extent, such Extraordinary Dividend or
non-cash dividend was paid with respect to a Released Share,
the Company Stock purchased with such proceeds shall be
deemed to be Released Shares.
If the Committee so determines, the Committee
shall direct the Trustee to make investments in Company
Stock through open-market purchases, private transactions or
purchases from the Company. The Committee shall also direct
the Trustee as to the timing and manner of such purchases in
order to comply with applicable law and to avoid, if
possible, adverse effects on the publicly traded market
price of Company Stock. The Trustee shall follow all such
directions.
II.5 Adjustments. In the event that the Committee
determines that any dividend or other distribution (whether
in the form of cash, shares, other securities, or other
property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of shares or
other securities of the Company, issuance of warrants or
other rights to purchase shares or other securities of the
Company, or other similar corporate transaction or event
affects the shares such that an adjustment is determined by
the Committee in its discretion to be appropriate, then the
Committee shall, in such manner as it may deem equitable,
make any adjustments to the maximum number of shares or
other securities of the Company (or number and kind of other
securities or property) which may be held in the Trust or
any other adjustments it deems appropriate. The Company
shall provide the Trustee with notice of any such
adjustments.
III
Procedures for Purchase and Sale of Shares
III.1 Purchase and Sale. Subject to the terms
and conditions set forth in the Common Stock Purchase
Agreement and Section 2.1 hereof, the Company will issue or
sell to the Trust at such times as the Company may
determine, and the Trust will purchase from the Company,
Company Stock, pursuant to the procedures set forth in this
Article 3. The Company Stock may be (i) previously
authorized but unissued Company Stock (the "New Shares") or
(ii) Company Stock held in treasury which the Company had
theretofore purchased, from time to time, on the open market
or otherwise (the "Repurchased Shares").
III.1.1 New Shares. The consideration for
the New Shares shall be cash and a Note, as provided in
Section 3.2, in an aggregate amount equal to the average
Fair Market Value of the Company Stock for the five trading
days immediately preceding the date which is two business
days prior to the Closing (defined in Section 3.2), as
certified in writing to the Trustee by the Company (the
"Average Market Price").
III.1.2 Repurchased Shares. The
consideration for the Repurchased Shares shall be a Note in
an amount equal either (i) to the purchase price paid by the
Company to acquire such shares (excluding, however, all
fees, commissions, transfer taxes and other similar costs
incurred in connection with the Company's purchase of such
shares) if such Repurchased Shares were acquired by the
Company within two business days of the date of the Closing
for the purchase of such Repurchased Shares by the Trust, or
(ii) to the Average Market Price if such Repurchased Shares
were repurchased by the Company more than two business days
prior to the Closing (the "Repurchase Price").
III.2 Closing. From time to time, the Company may sell,
and the Trust shall purchase if so instructed by the
Company, at a closing (each closing being referred to herein
as a "Closing" and the first Closing being referred to as
"the Initial Closing"), Company Stock up to an aggregate
number of shares that represents 5% of the outstanding
shares of Company Stock on the Effective Date of the Trust.
Except with respect to the Initial Closing, the Company
shall give notice, as described below (the "Sale Notice"),
to the Trustee regarding each Closing no later than two (2)
business days prior to the date of such Closing, unless the
Trustee elects to waive such condition. The Sale Notice
shall set forth (i) the date of the Closing, (ii) the number
of Repurchased Shares and New Shares, if any, to be sold to,
and purchased by, the Trust and (iii) the aggregate
consideration to be paid by the Trust for such shares as
determined pursuant to Section 3.1 (the "Total
Consideration"). If the Total Consideration is not
determinable as of the date the Sale Notice is provided, the
Company will provide the Trustee with such information prior
to the Closing. The Trust shall pay such Total
Consideration by (i) paying to the Company at the Closing
the $.01 par value per New Share, if any, by wire transfer
of immediately available funds, and (ii) (a) with respect to
the Initial Closing, delivering the Note, or (b) with
respect to any Subsequent Closing, increasing such
Note, in an amount equal to (I) the aggregate Average Market
Price of any New Shares purchased at such Closing minus the
amount paid pursuant to clause (i) of this sentence, and/or
(II) the aggregate Repurchase Price of any Repurchased
Shares purchased at such Closing, as applicable (the "Loan
Amount"). All Closings will be held at the corporate
offices of the Company, 259 Radnor-Chester Road, Suite 100,
Radnor, Pennsylvania 19087-8675, on the date identified in
the Sale Notice, or at such other time, date and place as
may be mutually agreed upon by the Company and the Trustee.
The Company may defer any proposed sale of Company Stock
pursuant to this Section 3.2 if the Company reasonably
determines that there are sufficient legal, financial or
accounting reasons for the Company to defer the timing of
such sale and notifies the Trustee in writing of such
deferral.
III.3 Delivery of Shares. At each Closing the
Company will deliver to the Trustee a certificate
representing the Company Stock sold at such Closing, which
certificate shall be registered in the name of the Trustee,
or the name of its nominee. The Company will pay all stamp
and other transfer taxes, if any, that may be payable in
respect of the sale and delivery of the Company Stock.
III.4 Company Records. The Company is hereby
authorized to record the price owed by the Trust from time
to time and all repayments of the principal of the Note on
the schedule attached to the Note.
IV
Release and Transfer of Company Stock
IV.1 Company Stock Made Available for Transfer
from Trust. Immediately after each payment, prepayment or
forgiveness, if any, of principal of the Loan is made, a
number of shares of Company Stock shall be made available
for transfer from the Trust ("Released Shares") in the
manner set forth in Section 4.2. The number of such
Released Shares shall equal the number of shares of Company
Stock held in the Trust immediately prior to such payment,
prepayment or forgiveness that have not already been deemed
Released Shares pursuant to a previous payment, prepayment
or forgiveness of principal of the Loan, multiplied by a
fraction, the numerator of which shall be the amount of
principal paid or prepaid or deemed forgiven upon such
payment or prepayment date or date of forgiveness and the
denominator of which shall be the sum of the numerator plus
the principal amount of the Loan remaining after such
payment, prepayment or forgiveness. No fractional shares
shall be released. If the preceding computation results in
fractional shares, the number of Released Shares shall be
computed by rounding down to the next whole number. The
number of Released Shares, determined as aforesaid, shall be
certified to the Trustee by the Committee.
IV.2 Transfer from Trust of Released Shares and
Cash Proceeds. Released Shares or other assets held in the
Trust (other than unreleased shares or the proceeds thereof)
shall be treated as follows. First, Released Shares shall
be transferred in kind by the Trustee, as directed by the
Committee, directly to one or more of the Stock Plans or
directly to Plan Participants pursuant to the terms of one
or more of the Stock Plans, in satisfaction of the
obligations of the Stock Plans or the Company to pay
compensation, benefits or any form of remuneration
thereunder which obligations are current at the time the
Released Shares are made available for transfer from the
Trust pursuant to Section 4.1.
If, after satisfying all such current obligations
of the Stock Plans there remain Released Shares or other
assets (other than unreleased shares or the proceeds
thereof) held in the Trust, such Released Shares and other
assets shall be sold by the Trustee and the proceeds of such
sale transferred by the Trustee, as directed by the
Committee, directly to one or more of the Non-Stock Plans,
if any, or directly to Plan Participants pursuant to the
terms of one or more of such Non-Stock Plans, in
satisfaction of the obligations of such Non-Stock Plans or
of the Company to pay compensation, benefits or any form of
remuneration thereunder which obligations are current at the
time the Released Shares or other assets are made available
for transfer from the Trust pursuant to Section 4.1 and
which obligations have not been otherwise satisfied or
provided by the Company.
If Released Shares or other assets (other than
unreleased shares or the proceeds thereof) remain in the
Trust after the transfers or sales described above, such
remaining Released Shares or assets shall, as the Committee
shall direct either (i) be transferred to, or used by the
Trustee to satisfy obligations under such other employee
benefit plans (or their participants and beneficiaries),
arrangements or obligations covering a broad cross-section
of employees of the Company or its subsidiaries as the
Committee shall direct (the "Other Arrangements") or (ii) be
retained in the Trust for allocation in subsequent years in
accordance with this Section 4.2, provided, however, that in
all events (but subject to Section 1.4 and 9.3) all Released
Shares or assets shall be transferred from the Trust to, or
for the benefit of, the Plans or Other Arrangements at or
prior to the end of the Trust Term.
The Committee will direct the Trustee as to the
timing and manner of any transfers or sales of Released
Shares pursuant to this Section 4.2 in order to comply with
applicable law and to avoid, if possible, adverse effects on
the publicly traded market price of Company Stock.
To facilitate sales of Released Shares pursuant to
this Section 4.2, if required, the Company shall register
under the 1933 Act, such number of Released Shares as the
Committee may direct.
Released Shares directed by the Committee to be
transferred to Plans with respect to which trusts have been
established shall be transferred to the trustee thereof; if
there is no trust established with respect to a Plan, the
shares allocated to such Plan shall be transferred to the
plan administrator of such Plan, to third party service
providers for such Plans or such other person as the
Committee shall direct.
The references to the Plans in this Agreement
shall not cause the Plans to become irrevocable and the
Company retains sole discretion to modify or amend any of
the provisions of the Plans or to terminate any or all of
them to the extent provided therein and/or as permitted by
applicable law.
V
Compensation, Expenses and Tax Withholding
V.1 Compensation and Expenses. The Trustee shall
be entitled to such reasonable compensation for its services
and to be reimbursed for its reasonable legal, accounting
and appraisal fees, expenses and other charges reasonably
incurred in connection with the administration, management,
investment and distribution of the Trust Fund all as may be
agreed upon from time to time by the Company and the
Trustee. Such compensation shall be paid, and such
reimbursement shall be made, out of the Trust Fund,
including amounts relating to earnings of the Trust, unless
paid directly by the Company. The Company agrees to either
make such payments directly or make sufficient contributions
to the Trust to pay such amounts owing the Trustee in
addition to those contributions required by Section 2.2.
However, the Trustee shall not be entitled to use
contributions required by Section 2.2 in satisfaction of
amounts owing to the Trustee for the payments of its
compensation and expenses.
In the event the Company fails to make the
contributions necessary to pay compensation and expenses
owing to the Trustee, as contemplated by this Section 5.1,
the Trustee shall be entitled to seek payment of such
compensation and expenses directly from the Company.
V.2 Withholding of Taxes. The Trustee shall
report and withhold any Federal, state or local taxes that
it is required by law or is instructed by the Company to
withhold from any payments, transfer or distributions it
makes pursuant to this Agreement and shall pay over amounts
withheld to the appropriate taxing authorities.
VI
Administration of Trust Fund
VI.1 Management and Control of Trust Fund.
Subject to the terms of this Agreement, the Trustee shall
have exclusive authority and responsibility to control the
assets of the Trust Fund.
VI.2 Investment of Funds. Except as otherwise
provided in Section 2.4 and in this Section 6.2, the Trustee
shall invest and reinvest the Trust Fund exclusively in
Company Stock, including any accretions thereto resulting
from the proceeds of a tender offer, recapitalization or
similar transaction which, if not in Company Stock, shall be
reduced to cash as soon as practicable. The Trustee shall
invest any portion of the Trust Fund temporarily pending
investment in Company Stock, distribution or payment of
expenses in (i) investments in United States Government
obligations with maturities of less than one year, (ii)
interest-bearing accounts including but not limited to
certificates of deposit, time deposits, saving accounts and
money market accounts with maturities of less than one year
in any bank, including the Trustee, with aggregate capital
at the time of such investment in excess of $1,000,000,000
and a Moody's Investors Service Rating at the time of such
investment of at least P1, or an equivalent rating from a
nationally recognized rating agency, which accounts are
insured by the Federal Deposit Insurance Corporation or
other similar federal agency, (iii) obligations issued or
guaranteed by any agency or instrumentality of the United
States of America with maturities of less than one year,
(iv) short-term discount obligations of the Federal National
Mortgage Association or (v) a common, collective, or pooled
trust fund or mutual fund maintained or advised by any
corporate Trustee hereunder (or affiliate thereof) whose
investments are limited to those described in (i), (ii),
(iii) and/or (iv) of this paragraph. In the absence of any
investment direction by the Committee, temporary investments
shall be made in any mutual fund described in clause (v) of
the preceding sentence.
VI.3 Trustee's Administrative Powers. Except as
otherwise provided herein, and subject to the Trustee's
duties hereunder, the Trustee shall have the following
powers and rights, in addition to those provided elsewhere
in this Agreement or by law:
VI.3.1 to retain any asset of the Trust
Fund for the purposes set forth herein;
VI.3.2 subject to the other provisions of
this Agreement, to sell, transfer, mortgage, pledge, lease
or otherwise dispose of, or grant options with respect to,
any Trust Fund assets at public or private sale, as
necessary to perform its obligations hereunder;
VI.3.3 to borrow from the Company pursuant
to the Loan to acquire Company Stock as authorized by this
Agreement;
VI.3.4 with the consent of the Committee,
to settle, submit to arbitration, compromise, contest,
prosecute or abandon claims and demands in favor of or
against the Trust Fund;
VI.3.5 to vote or to give any consent with
respect to any securities, including any Company Stock, held
by the Trust either in person or by proxy for any purpose,
provided that the Trustee shall vote, tender or exchange all
shares of Company Stock as provided in Section 6.4;
VI.3.6 to employ such accountants,
actuaries, attorneys, investment bankers, appraisers, other
advisors and agents as may be reasonably necessary in
collecting, managing, administering, investing, valuing,
distributing and protecting the Trust Fund or the assets
thereof or any borrowings of the Trustee made in accordance
with Section 6.3.3; and to pay their reasonable fees and
expenses, which shall be deemed to be expenses of the Trust
and for which the Trustee shall be reimbursed in accordance
with Section 5.1;
VI.3.7 to cause any asset of the Trust
Fund to be issued, held or registered in the Trustee's name
or in the name of its nominee, or in such form that title
will pass by delivery, provided that the records of the
Trustee shall indicate the true ownership of such asset;
VI.3.8 to utilize another entity as
custodian to hold, but not invest or otherwise manage or
control, some or all of the assets of the Trust Fund; and
VI.3.9 to consult with legal counsel (who
may also be counsel for the Trustee or the Company
generally) with respect to any of its duties or obligations
hereunder; and to pay the reasonable fees and expenses of
such counsel, which shall be deemed to be expenses of the
Trust and for which the Trustee shall be reimbursed in
accordance with Section 5.1.
Notwithstanding any power granted to the Trustee pursuant to
the foregoing or under applicable law, neither the Trust nor
the Trustee shall have any power to, and shall not, engage
in any trade or business (solely in its capacity as Trustee
of the Trust) and, in particular, the Trustee shall not have
any power that could give the Trust the objective of
carrying on a business and dividing the gains therefrom,
within the meaning of Treas. Reg. 301.7701-2.
VI.4 Rights Regarding Company Stock.
VI.4.1 Voting Rights. The Trustee shall
follow the directions of the Designated Plan Participants
with respect to the manner of voting of Company Stock held
by the Trust. Prior to each annual or special shareholders'
meeting of the Company, or deadline for the return of action
by written consent of shareholders in lieu of a meeting, the
Trustee shall furnish to each person who is a Designated
Plan Participant as of the record date for such action (the
"Record Date,") at the expense of the Company, a copy of the
proxy solicitation material sent generally to shareholders,
together with a form requesting confidential instructions on
how such Designated Plan Participant directs the Trustee to
vote with respect to each matter pending before such meeting
or written consent of shareholders. The Committee and the
Trustee shall be deemed to have complied with the preceding
sentence with respect to any such Designated Plan
Participant if they timely mail such proxy solicitation
material and form to the Designated Plan Participant's last
known address on the records of the Company. The Trustee
shall collect the confidential instruction forms and shall
vote the shares of Company Stock held in the Trust in the
same proportion as the directed votes, other than
abstentions, actually and timely received from such
Designated Plan Participants, with each Designated Plan
Participant being entitled to a number of directed votes
equal to the number of such Participant's Voting Shares.
For example, assuming the Designated Plan Participants hold
(or whose accounts are credited with) 30 Voting Shares -- if
Designated Plan Participants who hold (or whose accounts are
credited with) 15 Voting Shares instruct the Trustee to vote
"yes," Designated Plan Participants who hold (or whose
accounts are credited with) 5 Voting Shares instruct the
Trustee to vote "no" and Designated Plan Participants who
hold (or whose accounts are credited with) 10 Voting Shares
direct the Trustee to abstain or do not instruct the
Trustee, the Trustee shall vote 75% of the shares of Company
Stock held in the Trust "yes" and 25% of such shares "no."
VI.4.2 Tender or Exchange Offer. If a
tender or exchange offer is commenced for Company Stock, the
Trustee shall, at the expense of the Company, (i) notify
each person who is a Designated Plan Participant as of the
date of commencement of such tender or exchange offer (the
"Commencement Date") and (ii) utilize its best efforts to
distribute or cause to be distributed to each such
Designated Plan Participant, in a timely manner, all
information distributed to shareholders of the Company in
connection with such offer together with a form requesting
confidential instructions on how such Designated Plan
Participant directs the Trustee with respect to the tender
or exchange of shares. The Committee and the Trustee shall
be deemed to have complied with the preceding sentence with
respect to any such Designated Plan Participant if they
timely mail such information and form to the Designated Plan
Participant's last known address on the records of the
Company. The Trustee shall collect such confidential
instruction forms and shall tender or exchange that number
of shares of Company Stock held in the Trust equal to the
total number of shares of Company Stock held in the Trust
multiplied by a fraction, the numerator of which is the
number of Voting Shares held by Designated Plan Participants
who affirmatively direct the Trustee to tender or exchange,
and the denominator of which is the total number of Voting
Shares held by all Designated Plan Participants (including
Voting Shares with respect to which such Designated Plan
Participants provide no instructions). A failure to direct
the Trustee shall be deemed an instruction not to tender or
exchange. For example, assuming the Designated Plan
Participants hold (or accounts are credited with) 30 Voting
Shares -- if Designated Plan Participants hold (or whose
accounts are credited with) 15 Voting Shares direct the
Trustee to tender, Designated Plan Participants who hold (or
whose accounts are credited with) 5 Voting Shares direct the
Trustee not to tender and Designated Plan
Participants who hold (or whose accounts are credited with)
10 Voting Shares provide no instructions, the Trustee shall
tender 50% (15/30) of the shares of Company Stock held in
the Trust.
VI.4.3 Confidentiality. The instructions
of each individual Designated Plan Participant made to the
Trustee pursuant to the foregoing paragraphs 6.4.1 and 6.4.2
shall be held confidential by the Trustee and shall not be
divulged or released to any person, including officers and
employees of the Company and its affiliates, except as
otherwise required by law or pursuant to order of a court of
competent jurisdiction.
VI.4.4 Trustee Action. The Trustee shall
not make any recommendation regarding the manner of
exercising any rights under this Section 6.4, including
whether or not such rights should be exercised.
VI.5 Indemnification. To the extent lawfully
allowable, the Company shall and hereby does indemnify and
hold harmless the Trustee from and against any claims,
demands, actions, administrative or other proceedings,
causes of action, liability, loss, costs, damage or expense
(including reasonable attorneys' fees), which may be
asserted against it, in any way arising out of or incurred
as a result of its action or failure to act in connection
with the operation and administration of the Trust; provided
that such indemnification shall not apply to the extent that
the Trustee has acted in willful or negligent violation of
applicable law or its duties under this Trust or in bad
faith. The Trustee shall be under no liability to any
person for any loss of any kind which may result (i) by
reason of any action taken by it in accordance with any
direction of the Committee or pursuant to Section 6.4, (ii)
by reason of its failure to exercise any power or authority
or to take any action hereunder because of the failure of
the Committee to give directions to the Trustee, as provided
for in this Agreement or (iii) by reason of any act or
omission of the Committee with respect to its duties under
this Trust. The Trustee shall be fully protected in acting
upon any instrument, certificate or paper delivered by the
Committee or the trustee or administrator of any Plan and
believed in good faith by the Trustee to be genuine and to
be signed or presented by the proper person or persons, and
the Trustee shall be under no duty to make any investigation
or inquiry as to any statement contained in any such
writing, but may accept the same as conclusive evidence of
the truth and accuracy of the statements therein contained.
This section shall survive termination of this Agreement and
any termination of service of the Trustee hereunder.
VI.6 General Duty to Communicate to Committee.
The Trustee shall promptly notify the Committee of all
communications with or from any governmental agency or with
respect to any legal proceeding with regard to the Trust or
with or from any Plan Participants concerning their alleged
entitlements under the Plans or the Trust.
VII
Duties of Trustee
VII.1 Records and Accounts of Trustee. The
Trustee shall maintain accurate and detailed records and
accounts of all transactions of the Trust, which shall be
available at all reasonable times for inspection or audit by
any person designated by the Company and which shall be
retained.
VII.2 Reports of Trustee. Within thirty (30)
days following the close of each Fiscal Year and each
quarter of each Fiscal Year, the Trustee shall deliver to
the Committee a statement for the period ending on the last
day of such Fiscal Year and/or quarter of such Fiscal Year,
as the case may be, listing all securities and other
property acquired or disposed of and all receipts,
disbursements and other transactions effected by the Trust
during such period, and further listing all cash,
securities, and other property held by the Trust, together
with the fair market value thereof, as of the end of such
period. In addition to the foregoing, the report shall
contain such information regarding the Trust Fund's assets
and transactions as the Committee in its discretion may
reasonably request. The Trustee shall also deliver to the
Committee such statements for other periods as the Committee
may reasonably request. Except as otherwise provided in the
next sentence, regulatory filings other than tax returns, if
any, required by the Trust shall be prepared by the Trustee,
at the expense of the Company, and submitted to the
Committee for the Company's review at least thirty (30) days
before the due date (including any extension thereof) for
filing such tax return or other regulatory filing. The
Company may, upon written notice to the Trustee, assume the
responsibility for preparing any regulatory filing required
by the Trust. The Trustee shall, at the expense of the
Company, timely file all such regulatory filings, if any, as
shall be directed by the Company and shall promptly provide
copies of such filings to the Committee. The Company shall
be responsible for filing all tax returns required by the
Trust unless the Company, upon reasonable advance notice,
requests that the Trustee assume such responsibility. The
Trustee shall cooperate with the Company to the extent
necessary to provide it with any information it reasonably
deems necessary to prepare and file such returns.
VII.3 Final Statement. In the event of the
resignation or removal of a Trustee hereunder, the Committee
may request and the Trustee shall with reasonable promptness
submit, for the period ending on the effective date of such
resignation or removal, a statement similar in form and
purpose to that described in Section 7.2.
VIII
Succession of Trustee
VIII.1 Resignation of Trustee. The Trustee or
any successor thereto may resign as Trustee hereunder at any
time upon delivering a written notice of such resignation,
to take effect 60 days after the delivery thereof to the
Committee, unless the Committee accepts shorter notice;
provided, however, that no such resignation shall be
effective until a successor Trustee has assumed the office
of Trustee hereunder.
VIII.2 Removal of Trustee. The Trustee or any
successor thereto may be removed by the Company by
delivering to the Trustee so removed an instrument executed
by the Committee. Such removal shall take effect at the
date specified in such instrument, which shall not be less
than 60 days after delivery of the instrument, unless the
Trustee accepts shorter notice; provided, however, that no
such removal shall be effective until a successor Trustee
has assumed the office of Trustee hereunder.
VIII.3 Appointment of Successor Trustee.
Whenever the Trustee or any successor thereto shall resign
or be removed or a vacancy in the position shall otherwise
occur, the Committee shall use its best efforts to appoint a
successor Trustee as soon as practicable after receipt by
the Committee of a notice described in Section 8.1, or the
delivery to the Trustee of a notice described in Section
8.2, as the case may be, but in no event more than 60 days
after receipt or delivery, as the case may be, of such
notice. A successor Trustee's appointment shall not become
effective until such successor shall accept such appointment
by delivering its acceptance in writing to the Company. If
a successor is not appointed within such 60 day period, the
Trustee, at the Company's expense, may petition a court of
competent jurisdiction for appointment of a successor. In
any event, only an entity with trust powers under applicable
law, which is not an affiliate of the Company, may be a
successor trustee hereunder.
VIII.4 Succession to Trust Fund Assets. The
title to all property held hereunder shall vest in any
successor Trustee acting pursuant to the provisions hereof
without the execution or filing of any further instrument,
but a resigning or removed Trustee shall, at the expense of
the Company, execute all instruments and do all acts
necessary to vest title in the successor Trustee. Each
successor Trustee shall have, exercise and enjoy all of the
powers, both discretionary and ministerial, herein conferred
upon its predecessors. A successor Trustee shall not be
obliged to examine or review the accounts, records, or acts
of, or property delivered by, any previous Trustee and shall
not be responsible for any action or any failure to act on
the part of any previous Trustee.
VIII.5 Continuation of Trust. In no event
shall the legal disability, resignation or removal of a
Trustee terminate the Trust, but the Committee shall
forthwith appoint a successor Trustee in accordance with
Section 8.3 to carry out the terms of the Trust.
VIII.6 Changes in Organization of Trustee. In
the event that any corporate Trustee hereunder shall be
converted into, shall merge or consolidate with, or shall
sell or transfer substantially all of its assets and
business to another corporation, the corporation resulting
from such conversion, merger or consolidation, or the
corporation to which such sale or transfer shall be made,
shall thereafter become and be the Trustee under the Trust
with the same effect as though originally so named but only
if such corporation is qualified to be a successor trustee
hereunder.
VIII.7 Continuance of Trustee's Powers in Event
of Termination of the Trust. In the event of the
termination of the Trust, as provided herein, the Trustee
shall dispose of the Trust Fund in accordance with the
provisions hereof. Until the final distribution of the
Trust Fund, the Trustee shall continue to have all powers
provided hereunder as necessary or expedient for the orderly
liquidation and distribution of the Trust Fund.
IX
Amendment or Termination
IX.1 Amendments. Except as otherwise provided
herein, the Company, by action of the Board of Directors or
the Committee, may amend the Trust at any time and from time
to time in any manner which it deems desirable, provided,
however:
IX.1.1 no amendment may be made that would
adversely affect the contingent rights of Plan Participants
under Sections 2.1, 2.2, 2.3, 2.4, 4.1, 4.2, 6.4, 9.1, 9.2
or 9.3, without the affirmative consent of a majority of all
Plan Participants;
IX.1.2 no amendment may change the duties
of the Trustee without the Trustee's consent, which consent
shall not be unreasonably withheld; and
IX.1.3 no amendment may alter the terms of
Section 1.1 to make the Trust revocable.
Notwithstanding the foregoing, the Company, acting
in good faith taking into account the best interests of a
broadly-based population of individuals employed by the
Company or broadly-based employee benefit plans in which
such persons participate, shall retain the power under all
circumstances to amend the Trust to increase the maximum
number (or percentage) of shares of Company Stock that may
be held by the Trust, to add employee benefit plans to, or
to delete Plans from, Schedule A and to clarify any
ambiguities or similar issues of interpretation in this
Agreement.
IX.2 Termination. The Trust shall terminate upon
the earlier of (i) the seventh anniversary of the Effective
Date (the "Termination Date") or (ii) the date on which the
Trust no longer holds any assets. The Board of Directors
may terminate the Trust at any time prior to the date the
Trust terminates pursuant to the preceding sentence;
provided, however, termination of the Trust shall not effect
a revocation of the terms hereof.
IX.3 Effect of Termination. Upon termination of
the Trust, the Trustee shall sell sufficient remaining
assets of the Trust (other than Released Shares or the
proceeds thereof) so that the proceeds of such sale,
together with any other available cash, can be applied to
pay in full the remaining principal of the Loan and any
accrued but unpaid interest thereon. The Committee may
direct the Trustee as to the timing and manner of such sale
in order to comply with applicable law and to avoid, if
possible, adverse effects on the publicly traded market
price of Company Stock. In the event the proceeds of the
sale shall be insufficient to discharge the Loan in its
entirety, the Company shall be deemed to have forgiven all
amounts which shall remain due and owing thereon. Any
assets or Company Stock remaining in the Trust after such
payment in full of the Loan shall be distributed as follows:
(i) first to satisfy current obligations under the Stock
Plans, (ii) second, to satisfy current obligations under the
Non Stock Plans to the extent not otherwise satisfied or
provided by the Company, and (iii) third, to or for the
benefit of any of the Other Arrangements, as the Committee
shall, in its sole discretion, determine.
IX.4 Form of Amendment or Termination. Any
amendment or termination of the Trust shall be evidenced by
an instrument in writing signed by an authorized officer of
the Company or a member of the Committee, certifying that
said amendment or termination has been authorized and
directed by the Board of Directors or the Committee, as
applicable.
X
Miscellaneous
X.1 Controlling Law. The laws of Delaware shall
be the controlling law in all matters relating to the Trust,
without regard to conflicts of law.
X.2 Committee Action. Any action required or
permitted to be taken by the Committee may be taken on
behalf of the Committee by any individual so authorized.
The Company shall furnish to the Trustee the name and
specimen signature of each member of the Committee upon
whose statement of a decision or direction the Trustee is
authorized to conclusively rely. Until notified of a change
in the identity of such person or persons, the Trustee shall
act upon the assumption that there has been no change.
X.3 Notices. All notices, directions,
instructions, requests, or other communications required or
permitted to be delivered hereunder shall be in writing,
delivered by registered or certified mail, return receipt
requested, telecopier or hand delivery as follows:
To the Company:
Airgas, Inc.
Executive Offices
259 Radnor-Chester Rd.
P.O. Box 6675
Radnor, PA 19087-8675
Attention: Mr. Robert Bartos
To the Trustee:
First Union National Bank
123 South Broad Street
11th Floor, PA 1249
Philadelphia, PA 19109
Attn: Mr. George Rayzis
Any party hereto may from time to time, by written notice
given as aforesaid, designate any other address to which
notices, requests or other communications addressed to it
shall be sent.
X.4 Severability. If any provision of the Trust
shall be held illegal, invalid or unenforceable for any
reason, such provision shall not affect the remaining parts
hereof, but the Trust shall be construed and enforced as if
said provision had never been inserted herein.
X.5 Protection of Persons Dealing with the Trust.
No person dealing with the Trustee shall be required or
entitled to monitor the application of any money paid or
property delivered to the Trustee, or determine whether or
not the Trustee is acting pursuant to authorities granted to
it hereunder or to authorizations or directions herein
required.
X.6 Tax Status of Trust. The Trust is intended
to be a grantor trust, of which the Company is the grantor,
within the meaning of subpart E, part 1, subchapter J,
chapter 1, subtitle A of the Code, and this Trust Agreement
shall be construed accordingly. Until advised otherwise,
the Trustee and the Company may presume that the Trust is so
characterized for Federal income tax purposes and the
Trustee shall make all filings of tax returns on that
presumption.
X.7 ERISA Status of Trust. Neither the Trust, nor
the assets held therein, are intended to be subject to the
Employee Retirement Income Security Act of 1974, as amended,
and this Agreement shall be construed accordingly.
X.8 Registration. The Company shall, to the
extent necessary for the Trustee to fulfill its obligations
hereunder and to facilitate the sale of Released Shares, if
so requested by the Trustee or if the Company otherwise
deems it necessary or desirable, prepare and file with the
Securities and Exchange Commission a registration statement
on Form S-3 or on any other appropriate form or such other
appropriate form of registration (such registration
statement, as it may be amended or supplemented from time to
time, being hereinafter referred to as the "Registration
Statement") in accordance with the Securities Act of 1933,
as amended, providing for the registration of the Company
Stock held by the Trust. The Company shall use its
reasonable efforts to cause such Registration Statement and
required filings under state securities laws to become
effective and to keep such Registration Statement and
required filings, or any subsequently filed Registration
Statement and required filings continuously effective until
the termination of the Trust. The Company shall take all
other action as is reasonably necessary to permit the
Trustee to sell shares as contemplated by this Agreement.
X.9 No Third Party Rights; Plan Participants to
Have No Interest in the Company by Reason of the Trust.
Except as specified in Section 6.4, neither this Agreement
nor the Trust shall confer upon any person other than the
parties hereto any rights, remedy or claim with respect to
the assets of the Trust or otherwise unless transferred out
of the Trust and until made available to such person.
Neither the creation of the Trust nor anything contained in
the Trust shall be construed as giving any person, including
any individual employed by the Company or any subsidiary of
the Company, any equity or interest in the assets, business
or affairs of the Company or any Plan Participant a right to
any benefit available under any of the Plans.
X.10 Nonassignability of Trust Interests. No
right or interest, if any, of any person to receive
distributions from the Trust shall be assignable or
transferable, in whole or in part, either directly or by
operation of law or otherwise, including, but not by way of
limitation, by execution, levy, garnishment, attachment,
pledge, or bankruptcy, but excluding death or mental
incompetency, and, to the fullest extent permitted by
applicable law, no right or interest, if any, of any person
to receive distributions from the Trust shall be subject to
any obligation or liability of any such person, including
claims for alimony or the support of any spouse or child.
X.11 Assignment of Trust. The rights and
obligations of the Company with respect to the Trust may be
assigned by the Board of Directors to any successor of
substantially all the business or assets of the Company.
Following any such assignment, the term "Company" hereunder
shall refer to such assignee.
X.12 Merger. If the Company is merged into
another corporation or another corporation is merged into
the Company then (a) the surviving corporation shall become
the grantor of the Trust, (b) the assets of the Trust shall
be subject to the claims of the creditors of the surviving
corporation in accordance with Article 1, above, and (c) the
provisions of this Agreement which apply to Company Stock
(including without limitation the provisions of Article 4,
above) shall apply to the stock of the surviving corporation
held hereunder or transferred to the Trust.
X.13 Gender and Plurals. Whenever the context
requires or permits, the masculine gender shall include the
feminine gender and the singular form shall include the
plural form and shall be interchangeable.
X.14 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be
considered an original.
IN WITNESS WHEREOF, the Company and the Trustee
have caused this Agreement to be signed, and their seals
affixed hereto, by their authorized officers all as of the
day, month and year first above written.
AIRGAS, INC.
By: /s/Scott Melman
Name: Scott Melman
Title:Senior Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK
By: /s/Alan G. Finn
Name: Alan G. Finn
Title:
SCHEDULE A
Airgas, Inc.
Stock Plans and Non-Stock Plans - As of March 30, 1999
I. STOCK PLANS
Title Plan Type
Airgas, Inc. 1997 Stock Option Plan Stock Option Plan
Airgas, Inc. 1984 Stock Option Plan Stock Option Plan
Airgas, Inc. 1998 Stock Purchase Plan 423 Stock Purchase
Plan
Airgas, Inc. 401(k) Plan 401(k) Plan
II. NON-STOCK PLANS
Title Plan Type
Exhibit 1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made
this 30th day of March, 1999, between Airgas, Inc., a Delaware corporation
(the "Seller" or the "Company"), and First Union National Bank, a national
banking association, not in its individual or corporate capacity, but
solely in its capacity as trustee (the "Trustee") of the Airgas, Inc.
Employee Benefits Trust (the "Trust," which is hereinafter sometimes
referred to as the "Purchaser") under a trust agreement between the Seller
and the Trustee dated as of March 30, 1999 (the "Trust Agreement").
W I T N E S S E T H:
WHEREAS, as contemplated by the Trust Agreement, the Purchaser is
to purchase from the Seller, and the Seller is to sell to the Purchaser,
from time to time shares of the Seller's Common Stock, par value $.01 per
share (the "Common Shares") up to an aggregate number of Common Shares that
represents 5% of the outstanding Common Shares (as may be adjusted pursuant
to Section 2.5 of the Trust Agreement) on the Effective Date of the Trust,
all as more specifically provided herein.
Capitalized terms not defined herein shall have the meaning set
forth in the Trust Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
7.1 Purchase and Sale. Subject to the terms and conditions set
forth herein, the Seller will sell to the Purchaser, and the Purchaser will
purchase from the Seller, at the Initial Closing (as hereinafter defined),
826,055 Common Shares (the "Initial Shares"), and, in consideration for
the Initial Shares, the Purchaser will deliver to the Seller (i) an amount
equal to the aggregate par value per New Share, if any, by wire transfer of
immediately available funds and (ii) the note in the form of Exhibit 2 to
the Trust Agreement in the principal amount of $7,000,816 (the "Note").
From time to time, the Seller may sell to the Purchaser and the Purchaser
may purchase from the Seller at a Closing (as hereinafter defined)
additional Common Shares up to an aggregate number of shares (including the
Initial Shares) that represents 5% of the outstanding Common Shares (as may
be adjusted pursuant to Section 2.5 of the Trust Agreement) on the
Effective Date of the Trust, and in consideration therefor the Purchaser
will deliver to the Seller (i) an amount equal to the aggregate par value
per New Share, if any, by wire transfer of immediately available funds and
(ii) will increase the principal amount of the Note by the aggregate
purchase price of such Common Shares minus the amount paid pursuant to
clause (i), if any, in accordance with the provisions of the Trust
Agreement.
1.2 Closing. The initial closing (the "Initial Closing") of the
sale and purchase of the Common Shares hereunder will be held at the
offices of the Seller at 10:00 a.m. eastern standard time, on the date
following the date of execution and delivery of this Agreement by the
Seller and the Purchaser, or at such other time, date and place as may be
mutually agreed upon by the Seller and the Purchaser. Any subsequent
closings ("Closing") shall occur at the time and place set forth in the
Sale Notice in accordance with the Trust Agreement. The number of
additional Common Shares purchased at any subsequent Closing and the price
therefore shall be set forth on a schedule to this Agreement and made a
part hereof.
7.1 Delivery and Payment. At the Initial Closing and each
subsequent Closing, the Seller will deliver to the Purchaser a certificate
representing the Common Shares, which certificate shall be registered in
the name of the Trustee, or the name of its nominee, against payment
therefor by the Purchaser to the Seller of the aggregate consideration set
forth in Section 1.1 hereof. The Seller will pay all stamp and other
transfer taxes, if any, that may be payable in respect of the sale and
delivery of the Common Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows:
2.1 Corporate Existence and Authority. The Seller (a) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, (b) has all requisite corporate power to
execute, deliver and perform this Agreement and (c) has taken all necessary
corporate action to authorize the execution, delivery and performance of
this Agreement.
2.2 No Conflict. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will
not, violate, conflict with or constitute a default under (a) the Seller's
certificate of incorporation or bylaws, (b) any agreement, indenture or
other instrument to which the Seller is a party or by which the Seller or
its assets may be bound or (c) any law, regulation, order, arbitration,
award, amendment or decree applicable to the Seller.
2.3 Validity. This Agreement has been duly executed and
delivered by the Seller and is a valid and binding agreement of the Seller
enforceable against the Seller in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity.
2.4 The Common Shares. The Common Shares have been duly
authorized and, when sold as contemplated hereby, will be validly issued,
fully-paid and non-assessable shares of the Seller. No stockholder of the
Seller has any preemptive or other subscription right to acquire any shares
of Common Stock. The Seller will convey to the Purchaser, on the date of
Closing, good and valid title to the Common Shares free and clear of any
liens, claims, security interests and encumbrances.
7.1 Litigation. There are no actions, suits, proceedings,
arbitrations or investigations pending or, to the Seller's best knowledge,
threatened in any court or before any governmental agency or
instrumentality or arbitration panel or otherwise against or by the Seller
which seek to or could restrain, prohibit, rescind or declare unlawful, or
result in substantial damages in respect of this Agreement or the
performance hereof by the Seller including, without limitation, the
delivery of the Common Shares).
7.1 Business and Financial Information. Seller has heretofore delivered
to the Purchaser copies of the most recent financial statements of the
Company. The Seller Financial Statements fairly present the consolidated
results of operations, changes in stockholders' equity and cash flows for
the periods set forth therein and the consolidated financial position as at
the dates thereof of Seller and its consolidated subsidiaries, in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as set forth in the notes
thereto and
subject, in the case of unaudited financial statements, to the omission of
certain notes not ordinarily accompanying such unaudited financial
statements and to normal year-end audit adjustments which in each case will
not be material to Seller and its consolidated subsidiaries taken as a
whole. Seller has filed with the Securities and Exchange Commission all
material forms, reports and documents required pursuant to the Securities
Act of 1933, as amended (the "1933 Act") and the Securities Exchange Act of
1934, as amended (the "1934 Act"), to be filed by it to date (the
"Disclosure Documents"). At the time filed, all of the Disclosure
Documents complied as to form in all material respects with all applicable
requirements of such Acts. None of the Disclosure Documents, at the time
filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
7.1 Authority; Validity. The Purchaser has full power and
authority under the Trust to execute and deliver this Agreement and the
Note and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Trustee
on behalf of the Trust and is a valid and binding agreement of the
Purchaser enforceable in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity. The Note has been duly authorized by the trustee on
behalf of the Trust and, upon execution and delivery by the Trustee on
behalf of the Trust, the Note will be a valid and binding agreement of the
Purchaser enforceable in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity.
7.1 No Conflict. The execution and delivery of this
Agreement do not, and the execution and delivery of the Note and the
consummation of the transactions contemplated hereby and thereby will not,
violate, conflict with or constitute a default under the terms of the Trust
or to the best of the Purchaser's knowledge, (a) any agreement, indenture
or other instrument to which the Trust is a party or by which the Trust or
its assets may be bound or subject or (b) any law, regulation, order,
arbitration award, judgment or decree applicable to the Trust.
ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
7.1 Restricted Securities. The Purchaser acknowledges that the Purchaser
is acquiring the Common Shares pursuant to a transaction exempt from
registration under the 1933 Act. The Purchaser represents, warrants and
agrees that all Common Shares acquired by the Purchaser pursuant to this
Agreement are being acquired for investment without any intention of making
a distribution thereof, or of making any sale or other disposition thereof
which would be in violation of the 1933 Act or any applicable state
securities law, and that the Purchaser will not dispose of any of the
Common Shares, except that the Trustee will, from time to time, convey to
certain Plans (as defined in the Trust Agreement) or sell pursuant to an
effective registration statement under the 1933 Act or an exemption
therefrom, a portion of the Common Shares to satisfy the obligations of the
Company or affiliate of the Company under such Plans, and except upon
termination of the Trust to the extent that the Trust then holds any Common
Shares, all in compliance
with all provisions of applicable federal and state law regulating the
issuance, sale and distribution of securities and then only in compliance
with the Trust Agreement.
7.1 Legend. Until such time as the Common Shares are registered
pursuant to the provisions of the 1933 Act or may be freely sold without
registration in accordance with Rule 144 under the 1933 Act, any
certificate or certificates representing the Common Shares delivered
pursuant to Section 1.1 will bear a legend in substantially the following
form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold, transferred or otherwise disposed of unless they have first
been registered under such Act or unless an exemption from
registration is available."
The Seller may place stop transfer orders against the registration or
transfer of any shares evidenced by such a certificate or certificates
until such time as the requirements of the foregoing are satisfied.
ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
7.1 Compliance and Filings. The Seller will comply with all
federal, state, local and foreign laws, regulations or orders, and all the
rules of any stock exchange or similar entity which are applicable to it or
to the conduct of its business, and, without limiting the generality of the
foregoing, shall make such filings, distributions and disclosures as are
required by the 1933 Act, the 1934 Act or any of the regulations, rules or
orders promulgated thereunder. The Seller will maintain complete and
accurate books, records and accounts in accordance with the requirements of
Section 13(b)(2) under the 1934 Act.
7.1 Registration. The Seller will, after a written request by
the Committee (as such term is defined in the Trust Agreement) to register
under the 1933 Act such number of Common Shares as the Committee may from
time to time direct, prepare for filing at the Seller's expense a
registration statement with the Securities and Exchange Commission, and
take such other action, sufficient to permit the public offering of such
Common Shares in accordance with the terms of this Agreement, and the
Seller will use its best efforts in all matters necessary or advisable to
cause such registration statement to become effective as promptly as
practicable and to remain effective for a reasonable period, all to the
extent requisite to permit the sale or other disposition of such Common
Shares. The Seller shall also use its best efforts to register or qualify
the Common Shares so registered under the securities and blue sky laws of
such jurisdictions within the United States as the Trustee or the Committee
may reasonably request, provided, however that the Seller shall not be
required to consent to general service of process for all purposes anywhere
it is not then qualified.
ARTICLE VI
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Purchaser. The obligation of
the Purchaser to purchase the Common Shares is subject to the satisfaction
of the following conditions on the date of the Initial Closing and each
subsequent Closing:
7.1.1.1.1.1 The representations and warranties of the
Seller set forth in Article II hereof shall be true and correct; and if the
Closing shall occur on a date other than the date of this Agreement, the
Purchaser shall have been furnished with a certificate, dated the date of
the Closing, to such effect, signed by an authorized officer of the Seller;
and
7.1.1.1.1.1 All permits, approvals, authorizations and
consents of third parties necessary for the consummation of the
transactions herein shall have been obtained, and no order of any court or
administrative agency shall be in effect which restrains or prohibits the
transactions contemplated by this Agreement, and no suit, action or other
proceeding by any governmental body or other person shall have been
instituted which questions the validity or legality of the transactions
contemplated by this Agreement.
7.1 Conditions to Obligations of the Seller. The obligation of
the Seller to issue, sell and deliver the Common Shares to the Purchaser is
subject to the satisfaction of the following conditions on the date of the
Initial Closing and each subsequent Closing:
7.1.1.1.1.1 The representations and warranties of the
Purchaser set forth in Article III hereof shall be true and correct; and if
the Closing shall occur on a date other than the date of this Agreement,
the Seller shall have been furnished with a certificate dated the date of
the Closing, to such effect, signed by an authorized officer of the
Trustee; and
(b) No order of any court or administrative agency shall be in effect
which restrains or prohibits the transactions contemplated by this
Agreement, and no suit, action or other proceeding by any governmental body
or other person shall have been instituted which questions the validity or
legality of the transactions contemplated by this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Expenses. The Seller shall pay all of its expenses, and it
shall pay the Purchaser's expenses, in connection with the authorization,
preparation, execution and performance of this Agreement, including,
without limitation, the reasonable fees and expenses of the Trustee, its
agents, representatives, counsel, financial advisors and consultants.
7.1 Survival of Seller's Representations and Warranties. All
representations and warranties made by the Seller to the Purchaser in this
Agreement shall survive the Initial Closing.
7.1 Notices. All notices, requests, or other communications
required or permitted to be delivered hereunder shall be in writing,
delivered by registered or certified mail, return receipt requested,
telecopier or hand delivery as follows:
(a) To the Seller:
Airgas, Inc.
259 Radnor-Chester Rd., Suite 100
P.O. Box 6675
Radnor, Pennsylvania 19087-8675
Attention: Mr. Robert Bartos
Telecopier: (610) 225-3271
(b) To the Purchaser:
First Union National Bank, as trustee of the Airgas,
Inc. Employee Benefits Trust
123 South Broad Street
11th Floor, PA 1249
Philadelphia, PA 19109
Attn: Mr. George Rayzis
Telecopier: 215-985-3428
Any party hereto may from time to time, by written notice given as
aforesaid, designate any other address to which notices, requests or other
communications addressed to it shall be sent.
7.1 Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of
this Agreement and agree that the obligations of the parties hereunder
shall be specifically enforceable, and neither party will take any action
to impede the other from seeking to enforce such rights or specific
performance.
7.5 Successors and Assigns; Integration; Assignment. This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties hereto and their respective legal representatives,
successors and assigns. This Agreement, (a) constitutes, together with the
Note, the Trust Agreement and any other written agreements between the
Purchaser and the Seller executed and delivered on the date hereof, the
entire agreement between the parties hereto and supersedes all other prior
agreements and understandings, both written and oral, among the parties,
with respect to the subject matter hereof, (b) shall not confer upon any
person other than the parties hereto any rights or remedies hereunder and
(c) shall not be assignable by operation of law or otherwise, except that
the Trustee may assign all its rights hereunder to any corporation or other
institution exercising trust powers in connection with any such institution
assuming the duties of a trustee under the Trust.
7.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
7.7 Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
7.8 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall be
effective unless in writing and signed by the Purchaser and the Seller.
7.9 Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if the signatures thereto were upon
one instrument.
7.10 Certain Limitations. The execution, delivery and
performance by the Trustee of this Agreement have been, and will be,
effected by the Trustee solely in its capacity as Trustee under the terms
of the Trust and not in its individual or corporate capacity. Nothing in
this Agreement shall be interpreted to increase, decrease or modify in any
manner any liability of the Trustee to the Seller or to any trustee,
representative or other claimant by right of the Seller resulting from the
Trustee's performance of its duties under the constituent instruments of
the Trust, and no personal or corporate liability shall be asserted or
enforceable against the Trustee by reason of any of the covenants,
statements or representations contained in this Agreement.
7.11 Incorporation. The terms and conditions of the Trust
Agreement relating to the nature of the responsibilities of the Trustee and
the indemnification of the Trustee by the Seller are incorporated herein by
reference and made applicable to this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement on the date and year first above written.
AIRGAS, INC.
By: /s/Scott Melman
Name: Scott Melman
Title: Senior Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK
By: /s/Alan G. Finn
Name: Alan G. Finn
Title: Vice President
Exhibit 2
PROMISSORY NOTE
$7,000,816 March 31, 1999
FOR VALUE RECEIVED, the undersigned, First Union National Bank,
not in its individual or corporate capacity but solely in its capacity as
Trustee (the "Trustee") of the Airgas, Inc. Employee Benefits Trust (the
"Trust") hereby promises on behalf of the Trust to pay to the order of
Airgas, Inc., a Delaware corporation (the "Company"), at the corporate
offices of the Company in Radnor, Pennsylvania or at such other place as
the Company shall designate in writing, the aggregate principal amount of
$7,000,816 in consideration for the purchase of 826,055 shares of common
stock, par value $.01 (the "Shares") on the date hereof (the "Initial
Purchase Date") in accordance with the Common Stock Purchase Agreement
between the Trustee and the Company dated the date hereof (the "Purchase
Agreement"). The principal amount of this Note shall be increased from
time to time if and when additional Shares are purchased by the Trustee to
reflect subsequent loans (the "Loans") made to the Trustee by the Company
in connection with such subsequent purchases of Shares by the Trustee on
behalf of the Trust after the Initial Purchase Date in accordance with the
terms set forth in the Trust Agreement and the Purchase Agreement.
Principal shall be paid in accordance with the amortization
schedule attached as Exhibit A hereto; provided, however, that this Note
may be prepaid in whole or in part at any time without penalty in
accordance with Section 2.3 of the Trust Agreement creating the Trust (the
"Trust Agreement"); and provided further, in accordance with Section 2.2 of
the Trust Agreement, that all or any portion of the principal of this Note
outstanding at any time, together with any accrued but unpaid interest on
this Note, may be deemed forgiven. In the event that the Trust shall
terminate in accordance with Section 9.2 and 9.3 of the Trust Agreement,
then any remaining principal of this Note then outstanding, together with
any accrued but unpaid interest on this Note, shall be immediately due and
payable. The Trustee agrees to pay interest on the unpaid principal
balance hereof, which shall be paid at the rate of 4.83%% annually, in
arrears, on the date principal is payable on the amount so paid.
Payments received within any Trust Year (as defined in the Trust
Agreement) shall be applied (i) first to interest accrued and unpaid as of
the date of any such payment, and then, (ii) to the extent that any such
payment exceeds such accrued and unpaid interest, to prepay interest that
accrues after such payment through the end of such Trust Year, and then,
(iii) to pay principal installments due within such Trust Year, and then,
(iv) to additional installments of principal in the order of their
scheduled maturity. Whenever any payment falls due on a Saturday, Sunday
or public holiday, such payment shall be made on the next preceding
business day.
This Note shall be construed under the laws of the State of
Delaware.
The undersigned represents and warrants that the indebtedness
represented by this Note was incurred for the purpose of purchasing shares
of Common Stock, par value $.01 per share, of the Company.
The Note may not be assigned by the Company, other than by
operation of law, without the prior express written consent of the
undersigned.
The Company shall have no recourse whatsoever to any assets of
the Trustee in its individual or corporate capacity for repayment. The
Trustee is entering into this Note not in its individual or corporate
capacity but solely as Trustee, and no personal or corporate liability or
personal or corporate responsibilities are assumed by, or shall at any time
be asserted or enforceable against, the Trustee in its individual or
corporate capacity under, or with respect to, this Note.
FIRST UNION NATIONAL BANK
By: /s/ Alan G. Finn
Name: Alan G. Finn
Title:
AIRGAS, INC.
By: /s/Scott Melman
Name: Scott Melman
Title: Senior Vice President and
Chief Financial Officer
Exhibit A
PRINCIPAL PAYMENT DATES
Principal Payment Date Principal Payments
March 31, 2000 $1,000,117
March 31, 2001 $1,000,117
March 29, 2002 $1,000,117
March 31, 2003 $1,000,117
March 31, 2004 $1,000,117
March 31, 2005 $1,000,117
March 31, 2006 $1,000,114