EX-2
FIRST AMENDMENT TO AMENDED
AND RESTATED EXCHANGE RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EXCHANGE RIGHTS AGREEMENT
is made as of the 28th day of February, 1998, by and between Cascade
Airgas, Inc., a Delaware corporation (the "Company"); Airgas, Inc., a
Delaware corporation ("Airgas"); Xxx X. Xxxxx, an individual, his estate or
personal representative, and any transferee of the Stock who shall
hereinafter become a party hereto by executing a counterpart hereof
(hereinafter referred to as "Shareholder"). Terms not defined herein shall
have the meanings given to them in the Agreement (as defined herein).
BACKGROUND
The Company, Airgas and Shareholder each executed and delivered an
Amended and Restated Exchange Rights Agreement (the "Agreement"), dated as
of March 1, 1994, which sets forth, among other things, their agreements
with regard to certain limited rights and obligations to exchange the
shares of the Stock for shares of Airgas common stock. Terms not defined
herein shall have the meanings given to them in the Agreement.
The Company, Airgas and Shareholder desire to amend certain terms and
provisions of the Agreement as more particularly set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, and intending to be
legally bound, the parties hereto agree as follows:
1. Section 1.8 of the Agreement is hereby amended to read as
follows:
1.8 Valuation Date. February 28, 1998.
2. Section 1.9 of the Agreement is hereby amended to read as
follows:
1.9 Final Valuation Notice. A final notice of valuation of the
Stock as defined in Section 3.4 hereof.
3. Section 3.2 of the Agreement is hereby amended to read as
follows:
EX-3
3.2 Mandatory Exchange. On any Mandatory Exchange Date made
applicable to all the minority shareholders of Company by the Board of
Directors of Airgas, Shareholder or, in the case of Shareholder's death,
Shareholder's personal representative shall exchange ("Mandatory Exchange")
all of the shares of Stock, valued in accordance with the provisions of
Section 3.3, for shares of common stock of Airgas. Airgas hereby gives
notice to the Company and Shareholder that a Mandatory Exchange applicable
to Shareholder will occur on February 28, 1998. Airgas has delivered a
preliminary draft of a Final Valuation Notice to the Company and
Shareholder and will deliver an interim draft of a Final Valuation Notice
to the Company and Shareholder on or before April 30, 1998. The Final
Valuation Notice will be delivered to the Company and Shareholder by Airgas
on or before May 31, 1998. Certificates evidencing the Stock and Airgas
shares shall be delivered, and all action necessary to complete the
Mandatory Exchange shall be taken, in accordance with the provisions of
Section 3.5 hereof.
3. Section 3.4 of the Agreement is hereby amended to read as
follows:
3.4. Notice of Valuation. For purposes of the Mandatory
Exchange, the final notice of valuation of the Stock (the "Final Valuation
Notice"), shall contain the following information:
(a) the dollar value of Company's common stock as of the
Valuation Date, as determined in accordance with Section 3.3 hereof;
(b) a calculation, based upon the number of shares of the
Stock as a percentage of all of the outstanding shares of common stock of
Company, of the dollar value of the Stock as of the Valuation Date; and
(c) a calculation of the number of shares of Airgas common
stock, valued on the basis of the Closing Price on the Valuation Date,
rounded to the nearest whole share, issuable to Shareholder upon the
exchange of Shareholder's Stock, valued in accordance with Section 3.3
hereof.
4. Section 3.5 of the Agreement is hereby amended to read as
follows:
3.5 Delivery of Certificates. On or before February 28, 1998,
Shareholder shall deliver to Airgas the stock certificates or other
instruments evidencing all of the Stock, together with stock powers for the
Stock duly endorsed for transfer and such other documents as shall be
necessary to effectuate the exchange or as Airgas may reasonably request.
On or before June 1, 1998, and following receipt of such deliveries and
upon compliance by Shareholder with all the provisions of this Agreement,
Airgas shall cause to be issued a certificate dated as of the Exchange Date
evidencing the number of shares of Airgas common stock set forth in the
Final Valuation Notice. All expenses incurred by Airgas in connection with
the valuation and exchange of Stock and the issuance of Airgas common stock
shall be paid by Airgas.
5. A new Section 4.3 is added to the Agreement to read in its
entirety as follows:
4.3 Shareholder represents, warrants and agrees as of the date
hereof that he does not intend to sell or otherwise dispose of the shares
of Airgas common stock he receives in connection with the Mandatory
Exchange.
6. Except as otherwise provided herein, the terms of the Agreement
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this First Amendment to
Amended and Restated Exchange Rights Agreement as of the day and year first
above written.
CASCADE AIRGAS, INC.
By: ________________________________
Xxxxxxx X. Xxxxxxxx, Vice President
AIRGAS, INC.
By: ________________________________
Xxxxxx X. Xxxx, Xx., Vice President
SHAREHOLDER
____________________________________
Xxx X. Xxxxx
SHAREHOLDER'S SPOUSE
____________________________________
Xxxxx X. Xxxxx
