Airgas, Inc. (NYSE: ARG), headquartered in Radnor Township, Pennsylvania, through its subsidiaries, is the largest U.S. distributor of industrial, medical and specialty gases (delivered in packaged or cylinder form), and hardgoods (welding, safety and related products).
Airgas is a good company with diverse product base able to serve a large customer base. Nation wide company with room for advancement and opportunities offering competitive pay and benifits. If you work hard for them they will give you a chance to grow in the company. I love my job and feel I am treated fairly and I have respect for my management team.
Cons
There are issues when working within a large company, there are departments that handle issues and functions that you need to rely on to do your job. There are any people to answer to and focus on sales and performance..
Advice to Senior Management
Positive reinforcement goes a long way, even though we are a large company with all the overhead to manage it, there are thousands of drivers, counter sales, branch associates that face customers daily, with a positive attitude and communication from the top, it
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.
Airgas is a good company with diverse product base able to serve a large customer base. Nation wide company with room for advancement and opportunities offering competitive pay and benifits. If you work hard for them they will give you a chance to grow in the company. I love my job and feel I am treated fairly and I have respect for my management team.
Cons
There are issues when working within a large company, there are departments that handle issues and functions that you need to rely on to do your job. There are any people to answer to and focus on sales and performance..
Advice to Senior Management
Positive reinforcement goes a long way, even though we are a large company with all the overhead to manage it, there are thousands of drivers, counter sales, branch associates that face customers daily, with a positive attitude and communication from the top, it
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.
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