FIRST AMENDMENT TO THE 1997 RIGHTS AGREEMENT
This First Amendment (this "Amendment") is made as of
November __, 1998 between Airgas, Inc., a Delaware corporation
(the "Company"), and The Bank of New York, a New York banking
corporation, as Rights Agent (the "Rights Agent").
The Company and the Rights Agent entered into a Rights
Agreement, dated as of April 1, 1997 (the "Rights Agreement").
Pursuant to Section 26 of the Rights Agreement, the
Board of Directors of the Company has authorized this amendment
to the Rights Agreement.
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:
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Section 1. Amendments to Rights Agreement. The Rights
Agreement shall be amended as follows:
(a) The first sentence of Section 3(a) of
the Rights Agreement is hereby amended by deleting the words
",provided that if such determination occurs on or after the date
of an Adverse Change in Control, then such date may be extended only
if there are Continuing Directors in office and such extension is
authorized by a majority of such Continuing Directors".
(b) Section 23(a) is hereby deleted in its
entirety and replaced with the following:
"The Board of Directors of the Company may, at its
option, at any time prior to the earlier of (i) any
Person becoming an Acquiring Person or (ii) the Close
of Business on the Final Expiration Date, redeem all,
but not less than all, of the then outstanding Rights
at a redemption price of $.001 per Right, appropriately
adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as
the "Redemption Price"). Notwithstanding the
foregoing, in the event payment of the Redemption Price
to a holder of Rights would result in the payment of an
amount not equal to $.01 or an integral multiple of
$.01, the amount to be paid shall be rounded upward to
the next $.01. The Company may, at its option, pay the
Redemption Price in cash, shares of Common Stock (based
on the current market price per share at the time of
redemption) or any other form of consideration deemed
appropriate by the Board of Directors.".
(c) The first and second sentences of Section
27 are hereby deleted in their entirety and replaced with the
following:
"Prior to the earliest of (i) the Distribution Date or
(ii) a Triggering Event, the Company may and the Rights
Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement (including
supplements or amendments that may be deemed to affect
the interests of the holders of Right Certificates
adversely) without the approval of any holders of
certificates representing shares of Common Stock and
associated Rights. From and after the earliest of (i)
the Distribution Date or (ii) a Triggering Event, the
Company may and the Rights Agent shall, if the Company
so directs, supplement or amend this Agreement without
the approval of any holders of Right Certificates (i)
to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provisions herein or (ii)
to make any other changes or provisions in regard to
matters or questions arising hereunder which the
Company may deem necessary or desirable; provided,
however, that no such supplement or amendment shall
adversely affect the interests of the holders of Rights
as such (other than an Acquiring Person or an Affiliate
or Associate of any such Acquiring Person), and no such
supplement or amendment may cause the Rights again to
become redeemable at such the as the Rights are not
then redeemable or cause this Agreement again to become
amendable other than in accordance with this sentence."
(d) The third sentence of Section 27 is
hereby amended by deleting the words "or, so long as any Person
is an Acquiring Person hereunder, the Continuing Directors".
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(e) Section 29 is hereby amended by (i)
deleting in each instance where they appear the words "(with,
where specifically provided for herein, the concurrence of the
Continuing Directors)", and (ii) deleting from the last sentence
thereof the words "or the Continuing Directors".
Section 2. One Agreement. Except as otherwise
expressly provided in this Amendment, all of the terms,
conditions and provisions of the Rights Agreement shall remain
the same, and the Rights Agreement, as amended hereby, shall
continue in full force and effect and this Amendment and the
Rights Agreement shall be read and construed as one instrument.
Section 3. Governing Law. This Amendment shall be
governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts to be made and
performed entirely within such State.
Section 4. Counterparts. This Amendment may be
executed in one or more counterparts, each of which when so
executed shall be deemed an original and all of which when taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the date and year first
written above.
AIRGAS, INC.
By:_______________________
Name:
Title:
THE BANK OF NEW YORK,
as Rights Agent
By:_______________________
Name:
Title:
