Exhibit 1.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS IS A FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of April 1,
1997 (the "Amendment"), between Airgas, Inc., a Delaware corporation (the
"Company"), and The Bank of New York, a New York banking corporation (together
with The Philadelphia National Bank, its predecessor in such capacity, the
"Rights Agent").
Background
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A. The Company and the Rights Agent have entered into a Rights
Agreement, dated as of August 1, 1988 (the "1988 Rights Agreement"). Pursuant to
the Rights Agreement, the Company declared a distribution of one right (a "1988
Right") initially representing the right to purchase one one-hundredth of a
share of Series A Junior Participating Preferred Stock, par value $0.01 per
share, of the Company for each share of Common Stock, par value $0.01 per share
("Common Stock"), of the Company outstanding at the close of business on August
12, 1988 (the "1988 Record Date"), and, subject to the terms of the 1988 Rights
Agreement, for each share of Common Stock issued between the 1988 Record Date
and the Distribution Date. Unless expressly provided otherwise herein,
capitalized terms have the meanings set forth in the 1988 Rights Agreement.
B. The Company has appointed the Bank of New York as the successor
Rights Agent under the 1988 Rights Agreement.
C. In view of, among other things, the expiration of the 1988 Rights
Agreement on August 1, 1998, the Company and the Rights Agent desire to enter
into a new Rights Agreement, dated as of the date hereof (the "1997 Rights
Agreement"), whereby the Company will declare a dividend of one right (a "1997
Right") initially representing the right to purchase one one-thousandth of a
share of Series B Junior Participating Preferred Stock, par value $0.01 per
share, of the Company for each share of Common Stock outstanding at the close of
business on April 29, 1997 (the "1997 Record Date"), and, subject to the terms
of the 1997 Rights Agreement, for each share of Common Stock that becomes
outstanding between the 1997 Record Date and the earliest of the Distribution
Date, the Redemption Date and the Final Expiration Date (as such terms are
defined in the 1997 Rights Agreement) and, in certain circumstances set forth in
the 1997 Rights Agreement, for each share of Common Stock that becomes
outstanding thereafter.
D. Accordingly, the Company and the Rights Agent desire to amend the
1988 Rights Agreement as hereinafter set forth to reflect the execution and
delivery of the 1997 Rights Agreement where provisions of the 1988 Rights
Agreement conflict with provisions of the 1997 Rights Agreement, the provisions
of the 1997 Rights Agreement control.
Terms
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Accordingly, in consideration of the premises and mutual agreements
herein set forth, and intending to be legally bound hereby, the parties hereby
agree as follows:
SECTION 1. Amendments to 1988 Rights Agreement. The 1988 Rights
Agreement shall be amended as follows:
(a) Section 1 of the 1988 Rights Agreement shall be amended by
deleting paragraph (a) in its entirety and substituting the following:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 20% or more of the Common Shares then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company or any Person organized,
appointed or established by the Company for or pursuant to the terms
of any such plan; provided, however, that in no event will any Person
be an Acquiring Person under this Agreement if such Person is an
"Acquiring Person" as such term is defined in the Rights Agreement,
dated as of April 1, 1997 (the "1997 Rights Agreement"), between the
Company and The Bank of New York.
(b) Section 1 of the 1988 Rights Agreement shall be further
amended by deleting paragraph (m) in its entirety and substituting the
following:
(m) "Section 11(a)(ii) Event" shall mean the event described in
Section 11(a)(ii) hereof.
(c) Section 1 of the 1988 Rights Agreement shall be further
amended by deleting paragraph (o) in its entirety and substituting the
following:
(o) "Stock Acquisition Date" shall mean the first date of public
announcement (which for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) under the
Exchange Act) by the Company or any Acquiring Person that an Acquiring
Person has become an Acquiring Person under this Agreement; provided,
however, that in the event (i) such Person is an "Acquiring Person"
(as such term is defined in the 1997 Rights Agreement) under the 1997
Rights Agreement or (ii) there has occurred, or there occurs, in
connection with such announcement, a "Stock Acquisition Date" (as such
term is defined in the 1997 Rights Agreement) under the 1997 Rights
Agreement has occurred, then in either of such cases no Stock
Acquisition Date will be deemed to have occurred under this Agreement.
(d) Section 3 of the 1988 Rights Agreement shall be amended by
adding the following sentence at the end of paragraph (a):
Notwithstanding the foregoing and anything to the contrary herein, in
the event any "Distribution Date" (as such term is defined in the 1997
Rights Agreement) has occurred under the 1997 Rights Agreement, then
in no event shall any Distribution Date be deemed to have occurred
under this Agreement (and the Board of Directors
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will not be subject to any of the obligations set forth in clause (ii)
of the first sentence of this paragraph (a)).
(e) Section 3 of the 1988 Rights Agreement shall be further
amended by deleting paragraph (d) in its entirety.
(f) Paragraph (b) of Section 11 of the 1988 Rights Agreement
shall be amended by deleting subparagraphs (A), (B) and (C) of subparagraph (ii)
thereof and substituting the following:
any Person, at any time after the date of this Agreement, is or
becomes an Acquiring Person,
(g) Section 8 of the 1988 Rights Agreement shall be amended by
deleting the last sentence and inserting the following:
The Rights Agent shall deliver all cancelled Right Certificates to
the Company.
(h) Section 13 of the 1988 Rights Agreement shall be amended by
adding the following new paragraph (f):
(f) In no event will the Rights Agent have any liability
hereunder in respect of any such Principal Party transactions,
including, without limitation, the propriety thereof. The Rights Agent
may rely and be fully protected in relying upon a certificate of the
Company stating that the provisions of this Section have been
fulfilled.
(i) Section 20 of the 1988 Rights Agreement shall be amended by
adding the following at the end of paragraph (k):
Subject to the foregoing, the Rights Agent shall be protected and
shall incur no liability for, or in respect of, any action taken or
omitted by it in connection with the administration of this Agreement
if such acts or omissions are in reliance upon (i) the proper
execution of the certification concerning beneficial ownership
appended to the form of assignment and the form of election to
purchase attached hereto unless the Rights Agent shall have actual
knowledge that, as executed, such certification is untrue or (ii) the
non-execution of such certification including, without limitation, any
refusal to honor any otherwise permissible assignment or election by
reason of such non-execution. The Company agrees to give the Rights
Agent prompt written notice of any event or ownership known to the
Company which would prohibit the exercise or transfer of the Right
Certificate.
(j) Section 31 of the 1988 Rights Agreement shall be amended by
adding the following proviso to the end of such Section:
; provided, however, that the rights and obligations of the Rights
Agent shall be governed and construed in accordance with the laws of
the State of New York.
SECTION 2. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall for all purposes be deemed an
original and which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed, all as of the day and year first above written.
AIRGAS, INC.
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
Title: Sr. Vice President - Law and
Corporate Developement
THE BANK OF NEW YORK, as Rights Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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