UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION
STATEMENT UNDER SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
AIRGAS, INC.
(Name of Subject Company)
AIRGAS, INC.
(Name of Person Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
009363102
(CUSIP Number of Class of Securities)
Robert H. Young, Jr.
Senior Vice President, General Counsel and Secretary
Airgas, Inc.
259 North Radnor-Chester Rd.
Radnor, PA 19087-5283
(610) 687-5253
(Name, address and telephone numbers of person authorized to receive notices and
communications on behalf of the persons filing statement)
With copies to:
Daniel A. Neff, Esq.
David A. Katz, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
ITEM 1. |
SUBJECT COMPANY INFORMATION. | 1 | ||
ITEM 2. |
IDENTITY AND BACKGROUND OF FILING PERSON. | 1 | ||
ITEM 3. |
PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. | 5 | ||
ITEM 4. |
THE SOLICITATION OR RECOMMENDATION. | 9 | ||
ITEM 5. |
PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED. | 24 | ||
ITEM 6. |
INTEREST IN SECURITIES OF THE SUBJECT COMPANY. | 24 | ||
ITEM 7. |
PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS. | 25 | ||
ITEM 8. |
ADDITIONAL INFORMATION. | 25 | ||
ITEM 9. |
EXHIBITS. | 30 |
ITEM 1. | SUBJECT COMPANY INFORMATION |
Name and Address
The name of the subject company to which this Solicitation/Recommendation Statement on Schedule 14D-9 (together with any exhibits attached hereto, this Statement) relates is Airgas, Inc., a Delaware corporation (Airgas or the Company). Airgas principal executive offices are located at 259 North Radnor-Chester Road, Radnor, Pennsylvania 19087-5283. Airgas telephone number at this address is (610) 687-5253.
Securities
The title of the class of equity securities to which this Statement relates is Airgas Common Stock, par value $0.01 per share, including the associated rights to purchase shares of Series C Junior Participating Preferred Stock (Rights, and together with the Airgas Common Stock, the Airgas Common Shares), issued pursuant to the Rights Agreement, dated as of May 8, 2007, between Airgas and The Bank of New York, as Rights Agent (the Rights Agreement). As of February 3, 2010, there were 82,729,623 Airgas Common Shares outstanding.
ITEM 2. | IDENTITY AND BACKGROUND OF FILING PERSON |
Name and Address
The name, business address and business telephone number of Airgas, which is the subject company and the person filing this Statement, are set forth in Item 1 above.
Tender Offer
This Statement relates to the tender offer by Air Products Distribution, Inc. (AP Sub), a Delaware corporation and wholly owned subsidiary of Air Products and Chemicals, Inc. (Air Products), to purchase all of the outstanding Airgas Common Shares at a price of $60.00 per share, net to the seller in cash, without interest and less any required withholding taxes. The tender offer is being made on the terms and subject to the conditions described in the Tender Offer Statement on Schedule TO (together with the exhibits thereto, the Schedule TO), filed by Air Products and AP Sub with the Securities and Exchange Commission (the SEC) on February 11, 2010. The value of the consideration offered, together with all of the terms and conditions applicable to the tender offer, is referred to in this Statement as the Offer.
Air Products has stated that the purpose of the Offer is to acquire control of, and the entire equity interest in, Airgas. Air Products has indicated that it intends, as soon as practicable after the consummation of the Offer, to seek to consummate a merger of Airgas and AP Sub (or one of its or Air Products subsidiaries) (the Second-Step Merger). Air Products has also stated that it intends to nominate, and solicit proxies for the election of, a slate of nominees for election at Airgas 2010 annual meeting of stockholders (the Airgas Annual Meeting). In addition, whether or not Air Products proposes a merger or other business combination with Airgas and whether or not its nominees are elected at the Airgas Annual Meeting, the Schedule TO states that Air Products intends, as soon as practicable after consummation of the Offer, to seek maximum representation on the Board of Directors of Airgas (the Airgas Board) and, promptly after the consummation of the Offer, to request that some or all of the current members of the Airgas Board resign and that Air Products designees be elected to fill the vacancies so created.
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The Offer is subject to numerous conditions, which include the following, among others:
| The Minimum Tender Condition there being validly tendered and not withdrawn before the expiration of the Offer a number of Airgas Common Shares that, together with the shares then owned by Air Products and its subsidiaries, represents at least a majority of the total number of Airgas Common Shares outstanding on a fully diluted basis, |
| The Rights Condition the Airgas Board redeeming the Rights or Air Products being satisfied, in its sole discretion, that the Rights have been invalidated or are otherwise inapplicable to the Offer and the Second-Step Merger, |
| The Section 203 Condition the Airgas Board having approved the Offer and the Second-Step Merger under Section 203 of the Delaware General Corporation Law (Section 203) or Air Products being satisfied, in its sole discretion, that Section 203 is inapplicable to the Offer and the Second-Step Merger, |
| The Certificate Condition the Airgas Board having approved the Offer and the Second-Step Merger under Article 6 of Airgas Amended and Restated Certificate of Incorporation (the Airgas Certificate) or Air Products being satisfied, in its sole discretion, that Article 6 of the Airgas Certificate is inapplicable to the Offer and the Second-Step Merger, |
| The HSR Condition the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), applicable to the purchase of shares under the Offer having expired or been terminated as described in the Schedule TO, and |
| The Impairment Condition Airgas not having entered into or effectuated any agreement or transaction with any person or entity having the effect of impairing AP Subs or Air Products ability to acquire Airgas or otherwise diminishing the expected value to Air Products of the acquisition of Airgas. |
In addition, Air Products is not required to consummate the Offer and may terminate or amend the Offer if at any time any of the following conditions exist, which conditions may be asserted by Air Products or AP Sub in their sole discretion regardless of the circumstances giving rise to any such condition failing to be satisfied:
| there is threatened, instituted or pending any action or proceeding by any person before any court or governmental authority or agency challenging or seeking to restrain or prohibit the making of the Offer, seeking to obtain material damages in connection with the Offer, seeking to restrain or prohibit the exercise of Air Products full rights of ownership of Air Products or Airgas business, seeking to require divestiture by Air Products of any Airgas Common Shares, seeking any material diminution in the benefits expected to be derived by Air Products from the transactions contemplated by the Offer, adversely affecting the financing of the Offer or that otherwise, in Air Products reasonable judgment, has or may have material adverse significance with respect to either the value of Airgas or any of its subsidiaries or affiliates or the value of the Airgas Common Shares to Air Products (the No Lawsuits Condition), |
| any action is taken, or any statute, rule, regulation, interpretation, judgment, injunction, order or decree is proposed, enacted, enforced, promulgated, amended, issued or deemed applicable to Air Products, AP Sub or any of their subsidiaries or affiliates, the Offer, the acceptance for payment of or payment for Airgas Common Shares, or any merger or other business combination involving Airgas, by any court, government or agency (other than the application of the waiting period of the HSR Act to the Offer or to any such merger or other business combination), that, in Air Products reasonable judgment, does or may, directly or indirectly, result in any of the consequences referred to in the bullet point immediately above (the No Diminution of Benefits Condition), |
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| there occurs any decline in either the Dow Jones Industrial Average, the Standard and Poors Index of 500 Industrial Companies or the NASDAQ-100 Index by an amount in excess of 15%, measured from the close of business on February 4, 2010 (the Market Index Condition), |
| any change occurs or is threatened (or any development occurs or is threatened involving a prospective change) in the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of Airgas or any of its affiliates that, in Air Products reasonable judgment, is or may be materially adverse to Airgas or any of its affiliates, or Air Products becomes aware of any facts that, in its reasonable judgment, have or may have material adverse significance with respect to either the value of Airgas or any of its affiliates or the value of the Airgas Common Shares to Air Products, |
| there occurs (a) any change in the general political, market, economic or financial conditions in the United States or abroad that, in Air Products reasonable judgment, could have a material adverse effect on the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of Airgas and its subsidiaries, taken as a whole, (b) any material adverse change (or development or threatened development involving a prospective material adverse change) in United States dollars or any other currency exchange rates or a suspension of, or a limitation on, the markets therefor, (c) any limitation (whether or not mandatory) by any governmental authority or agency on, or any other event that, in Air Products reasonable judgment, may adversely affect the extension of credit by banks or other financial institutions, (d) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market, (e) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (f) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States or any attack on, outbreak or act of terrorism involving the United States, or (g) in the case of any of the foregoing existing as of the close of business on February 4, 2010, a material acceleration or worsening thereof (together with the condition in the bullet point immediately above this bullet point, the No Material Adverse Effect Condition), |
| any other person publicly proposes or makes a tender or exchange offer for some or all of the Airgas Common Shares or enters into any agreement or makes any proposal with respect to a tender or exchange offer, merger, consolidation or other business combination with Airgas, or has acquired or proposes to acquire more than 5% of any class or series of capital stock of Airgas, or any person that filed a Schedule 13D or 13G with the SEC prior to February 4, 2010 acquires or proposes to acquire beneficial ownership of additional Airgas Common Shares constituting 1% or more of any such class or series, or any person files a Notification and Report Form under the HSR Act or makes a public announcement reflecting an intent to acquire Airgas or any assets or securities of Airgas (the Stockholder Ownership Condition), |
| Airgas or any of its subsidiaries has split, combined or otherwise changed, or authorized or proposed the split, combination or other change of, the Airgas Common Shares or its capitalization, acquired or caused a reduction in the number of outstanding Airgas Common Shares, issued or sold any Airgas Common Shares, declared or paid any dividends, or altered any material term of any outstanding security or issued or sold any debt security, |
| Airgas has authorized or recommended or announced its intent to enter into an agreement with respect to or effected any merger or business combination, acquisition or disposition of assets or relinquishment of any material contract or other rights not in the ordinary course of business, or enters into any agreement or arrangement with any person that, in Air Products reasonable judgment, has or may have material adverse significance with respect to either the value of Airgas or any of its subsidiaries or the value of the Airgas Common Shares to Air Products, |
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| Airgas has adopted or amended any employment, severance, change of control, retention or other similar agreement other than in the ordinary course of business, or adopted or amended any such agreements or plans so as to provide for increased benefits to officers, directors, employees or consultants as a result of or in connection with the Offer, |
| Airgas has amended or proposed any amendment to the Airgas Certificate or bylaws (the conditions in this bullet point and the immediately preceding three bullet points referred to together as the No Material Change Condition), |
| Air Products becomes aware (a) that any material contractual right of Airgas has been impaired or otherwise adversely affected or that any material amount of indebtedness of Airgas has been accelerated or has otherwise become due or become subject to acceleration prior to its stated due date in connection with the Offer or the consummation by Air Products of a business combination with Airgas, or (b) of any covenant, term or condition in any instrument or agreement of Airgas that, in Air Products reasonable judgment, has or may have material adverse significance with respect to either the value of Airgas or any of its affiliates or the value of the Airgas Common Shares to Air Products or any of its affiliates (including any event of default that may ensue in connection with the Offer, the acceptance for payment of or payment for some or all of the Airgas Common Shares by Air Products or the consummation of a business combination between Air Products and Airgas) (the No Adverse Effect on Contracts Condition), |
| Air Products or any of its affiliates enters into a definitive agreement or announces an agreement in principle with Airgas providing for a merger or other similar business combination with Airgas or the purchase of securities or assets of Airgas, or Air Products and Airgas reach any other agreement or understanding pursuant to which it is agreed that the Offer will be terminated, |
| Airgas or any of its subsidiaries shall have (a) granted to any person proposing a merger or other business combination with or involving Airgas or any of its subsidiaries or the purchase of securities or assets of Airgas or any of its subsidiaries any type of option, warrant or right which, in Air Products reasonable judgment, constitutes a lock-up device (including a right to acquire or receive any Airgas Common Shares or other securities, assets or business of Airgas or any of its subsidiaries) or (b) paid or agreed to pay any cash or other consideration to any party in connection with or in any way related to any such business combination or purchase or |
| any required approval, permit, authorization, extension, action or non-action, waiver or consent of any governmental authority or agency shall not have been obtained on terms satisfactory to Air Products and AP Sub or any waiting period or extension thereof imposed by any government or governmental authority or agency with respect to the Offer shall not have expired. |
For a full description of the conditions to the Offer, please see Annex A attached hereto. The foregoing summary of the conditions to the Offer does not purport to be complete and is qualified in its entirety by reference to the contents of Annex A attached hereto.
The Schedule TO states that the principal executive offices of Air Products are located at 7201 Hamilton Boulevard, Allentown, Pennsylvania, 18195-1501 and that the telephone number of its principal executive offices is (610) 481-4911.
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ITEM 3. | PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS |
Except as described in this Statement or in the excerpts from the Airgas Definitive Proxy Statement on Schedule 14A, dated and filed with the SEC on July 13, 2009 (the 2009 Proxy Statement), relating to the 2009 Annual Meeting of Stockholders, which excerpts are filed as Exhibit (e)(1) to this Statement and incorporated herein by reference, as of the date of this Statement, there are no material agreements, arrangements or understandings, nor any actual or potential conflicts of interest, between Airgas or any of its affiliates, on the one hand, and (i) Airgas or any of its executive officers, directors or affiliates, or (ii) AP Sub, Air Products or any of their respective executive officers, directors or affiliates, on the other hand. Exhibit (e)(1) is incorporated herein by reference and includes the following sections from the 2009 Proxy Statement: Compensation of Directors, Compensation Discussion and Analysis, Executive Compensation, Certain Relationships and Related Transactions and Security Ownership.
Any information contained in the pages from the 2009 Proxy Statement incorporated by reference herein shall be deemed modified or superseded for purposes of this Statement to the extent that any information contained herein modifies or supersedes such information.
Relationship with Air Products
According to the Schedule TO, as of February 11, 2010, Air Products was the beneficial owner of 1,508,255 Airgas Common Shares, representing approximately 1.8% of the outstanding Airgas Common Shares.
Airgas has a long-term take-or-pay supply agreement, in effect through August 31, 2017, with Air Products to supply Airgas with bulk liquid nitrogen, oxygen and argon. Additionally, Airgas purchases helium and hydrogen gases from Air Products under long-term take-or-pay supply agreements. Based on the volume of fiscal 2010 purchases, the Air Products supply agreements represent approximately $55 million annually in liquid bulk gas purchases.
Consideration Payable Pursuant to the Offer and the Second-Step Merger
If the Airgas directors and executive officers were to tender any Airgas Common Shares they own pursuant to the Offer, they would receive the same cash consideration on the same terms and conditions as the other Airgas stockholders. As of February 19, 2010, the Airgas directors and executive officers owned an aggregate of 8,404,200 Airgas Common Shares. If the Airgas directors and executive officers were to tender all of such Airgas Common Shares for purchase pursuant to the Offer and those Airgas Common Shares were accepted for purchase by Air Products, the Airgas directors and executive officers would receive an aggregate of approximately $504 million in cash. To the knowledge of Airgas, none of the Airgas directors and executive officers currently intend to tender shares held of record or beneficially owned by such person for purchase pursuant to the Offer.
As of February 19, 2010, the Airgas directors and executive officers held options to purchase an aggregate of 2,480,683 Airgas Common Shares, with exercise prices ranging from $8.99 to $60.84 and an aggregate weighted average exercise price of $32.24 per share, 1,699,708 of which were vested and exercisable as of that date. Any Airgas stock options held by the Airgas directors and executive officers were issued pursuant to the 1997 Stock Option Plan, the 1997 Directors Stock Option Plan and the 2006 Amended and Restated Equity Incentive Plan, filed as Exhibits (e)(2), (e)(3) and (e)(4), respectively, to this Statement, and incorporated herein by reference (collectively, the Plans). Under the Plans, consummation of the Offer would constitute a change of control of Airgas, and upon a change of control of Airgas, unvested options to purchase 780,975 Airgas Common Shares held by the Airgas directors and executive offers would vest.
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The following table summarizes, with respect to (1) each Airgas director, (2) each Airgas Named Executive Officer, and (3) all executive officers (other than the Named Executive Officers) (the Other Executive Officers) as a group, the aggregate, positive difference in value between $60 and the per share exercise prices (the Spread Value) of the options to purchase Airgas Common Shares held by such directors and executive officers as of February 19, 2010:
Name |
Airgas Common Shares Subject to Unvested Options (#) |
Aggregate Spread Value of Unvested Options ($) |
Airgas Common Shares Subject to Vested Options (#) |
Aggregate Spread Value of Vested Options ($) |
||||||||
Peter McCausland Chairman and Chief Executive Officer |
331,250 | 4,160,500 | 633,750 | 21,353,550 | ||||||||
W. Thacher Brown Director |
| | 66,500 | 2,019,035 | ||||||||
Paula A. Sneed Director |
| | 66,500 | 2,019,035 | ||||||||
James W. Hovey Director |
| | 66,500 | 2,019,035 | ||||||||
Richard C. Ill Director |
| | 41,000 | 874,185 | ||||||||
David M. Stout Director |
| | 66,500 | 2,019,035 | ||||||||
Lee M. Thomas Director |
| | 57,500 | 1,600,435 | ||||||||
John C. van Roden, Jr. Director |
| | 25,540 | 346,643 | ||||||||
Ellen C. Wolf Director |
| | 11,773 | 225,769 | ||||||||
Michael L. Molinini Executive Vice President and Chief Operating Officer |
104,025 | 1,422,433 | 132,475 | 4,332,499 | ||||||||
Robert M. McLaughlin Senior Vice President and Chief Financial Officer |
63,550 | 768,689 | 70,950 | 2,178,173 | ||||||||
Leslie J. Graff Senior Vice President, Corporate Development |
46,125 | 610,589 | 80,545 | 2,606,215 | ||||||||
B. Shaun Powers Division President East |
42,000 | 533,533 | 101,900 | 3,544,491 | ||||||||
All Other Executive Officers as a |
194,025 | 2,421,196 | 278,275 | 9,078,819 |
Potential Severance and Change in Control Benefits
Airgas has entered into change of control agreements (the COC Agreements) with Messrs. McCausland, Graff, McLaughlin, Molinini and Powers, and three other executive officers. The terms of the COC Agreements provide salary and benefit continuation if (1) there is a change of control of Airgas and (2) Airgas terminates a covered executives employment without cause or if the executive terminates employment for good reason, in each case within three years following a change of control (a Qualifying Termination). Good reason includes a material diminution of position, a material decrease in base compensation, a material breach of any employment agreement, or a material change in location. The Offer, if consummated, would constitute a change of control for purposes of each of the COC Agreements.
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Under the COC Agreements, in the event of a Qualifying Termination, an executive would be entitled to:
| a lump-sum payment equal to two times the sum of (1) the executives annual base salary at the time of termination, or, if greater, at the time the change of control occurred, plus (2) the bonus amount last paid to the executive prior to the occurrence of the change of control under the Airgas annual executive bonus plan; |
| continuation of health and welfare benefits for up to three years; and |
| vesting of all stock options and restricted stock. |
The cash and non-cash amounts payable under the COC Agreements and under any other arrangements with Airgas are limited to the maximum amount permitted without the imposition of an excise tax under the Internal Revenue Code (the Severance Cap). Generally, the Severance Cap would limit an executives benefits under a COC Agreement to 2.99 times the executives average annual compensation for the preceding five years. The above description of the COC Agreements is qualified in its entirety by reference to the COC Agreement filed as Exhibit (e)(5) to this Statement and incorporated herein by reference.
Under an arrangement with Mr. McCausland originally entered into in 1992, which was amended and restated on May 29, 2009 (the Amended and Restated Executive Severance Agreement), in the event Mr. McCausland experiences a Qualifying Termination, he is entitled to a payment equal to two times his annual base salary, in addition to any severance payments and benefits under his COC Agreement. The aggregate payments and benefits to Mr. McCausland under the COC Agreement and the Amended and Restated Executive Severance Agreement are subject to the Severance Cap. The above description of the Amended and Restated Executive Severance Agreement is qualified in its entirety by reference to the Amended and Restated Executive Severance Agreement filed as Exhibit (e)(6) to this Statement and incorporated herein by reference.
The Airgas, Inc. Severance Pay Plan (the Severance Pay Plan) provides severance benefits to all Airgas employees, including the executive officers covered by the COC Agreements (other than Mr. McCausland), in the event of a termination of employment due to (1) a lack of work, (2) a reorganization of the Airgas business, (3) the closing of all or a portion of the executives principal workplace or (4) economic conditions. Benefits under the Severance Pay Plan include two weeks of notice pay plus one week of salary for each completed year of service, up to a maximum of 24 weeks of salary. In addition, under the Severance Pay Plan, an eligible participant will be entitled to continued health and welfare benefits during the severance period at the same cost that Airgas employees pay. Benefits under the plan are not available to an executive officer if the executive officer is eligible for similar benefits under a separate severance agreement with Airgas, such as a COC Agreement.
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The following table presents, with respect to (1) each Airgas Named Executive Officer, and (2) with respect to all Other Executive Officers as a group, an estimate of the amounts of severance benefits payable in the event of a Qualifying Termination, estimated as of February 19, 2010. For a quantification of the Spread Value of vested and unvested options to purchase Airgas Common Shares based on a $60 per share value, see the table above under the heading Consideration Payable Pursuant to the Offer and the Second-Step Merger.
Name |
Severance Payments ($) | Health and Welfare Benefits ($) | ||
Peter McCausland Chairman and Chief Executive Officer |
4,550,000 | 17,152 | ||
Michael L. Molinini Executive Vice President and Chief Operating Officer |
1,192,969 | 17,152 | ||
Robert M. McLaughlin Senior Vice President and Chief Financial Officer |
841,207 | 25,807 | ||
Leslie J. Graff Senior Vice President, Corporate Development |
693,591 | 25,807 | ||
B. Shaun Powers, Division President East |
797,922 | 25,807 | ||
All Other Executive Officers as a group (five individuals) |
2,142,996 | 83,707 |
Directors Compensation
Under the Airgas director compensation policy, only directors who are not employees of Airgas receive compensation for their services as directors. Non-employee directors receive an annual retainer of $25,000, plus a fee of $1,500 for each Board or committee meeting attended. The Chairmen of the Governance and Compensation Committee and the Finance Committee also receive an additional $3,000 annual retainer, and the Chairman of the Audit Committee receives an additional $5,000 annual retainer. A majority of the directors compensation is in the form of immediately exercisable stock options with an exercise price of each option equal to the closing price of Airgas Common Shares on the date of grant. Airgas also reimburses its non-employee directors for their out-of-pocket expenses incurred in connection with attendance at Board, committee and stockholder meetings, and other company business.
Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the DGCL) permits Airgas to indemnify any of its directors or officers against expenses (including attorneys fees), judgments, fines and amounts paid in settlement, incurred in defense of any action (other than an action by or in the right of Airgas) arising by reason of the fact that he is or was an officer or director of Airgas if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of Airgas and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 also permits Airgas to indemnify any such officer or director against expenses incurred in an action by or in the right of Airgas if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of Airgas, except in respect of any matter as to which such person is adjudged to be liable to Airgas, in which case court approval must be sought for indemnification. This statute requires indemnification of such officers and directors against expenses to the extent they may be successful in defending any such action. This statute provides that it is not exclusive of other indemnification that may be granted by the Airgas by-laws, a vote of stockholders or disinterested directors, agreement or otherwise. The statute permits purchase of liability insurance by the registrant on behalf of officers and directors, and Airgas has purchased such insurance.
Article VII of the Airgas bylaws requires indemnification to the fullest extent permitted by, and in the manner permissible under, the laws of the State of Delaware to any person made, or threatened to be made, a
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party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of Airgas or any predecessor of Airgas or served any other enterprise as a director or officer at the request of Airgas or any predecessor of Airgas. The indemnification provided for in Article VII is expressly not exclusive of any other rights to which any director or officer may be entitled apart from the provisions of that Article.
ITEM 4. | THE SOLICITATION OR RECOMMENDATION |
Solicitation/Recommendation
After careful consideration, including review of the terms and conditions of the Offer in consultation with Airgas financial and legal advisors, the Airgas Board, by unanimous vote at a meeting on February 20, 2010, determined that the Offer is inadequate to Airgas stockholders and that the Offer is not in the best interests of Airgas stockholders. Accordingly, for the reasons described in more detail below, the Airgas Board unanimously recommends that Airgas stockholders reject the Offer and NOT tender their Airgas Common Shares to AP Sub pursuant to the Offer. Please see Reasons for Recommendation below for further detail.
If you have tendered your Airgas Common Shares, you can withdraw them. For assistance in withdrawing your Airgas Common Shares, you can contact your broker or Airgas information agent, Innisfree M&A Incorporated, at the address and phone number below.
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
Stockholders may call toll-free: (877) 687-1875
Banks and brokers may call collect: (212) 750-5833
Copies of the press release and letters to Airgas stockholders, employees and customers relating to the recommendation of the Airgas Board to reject the Offer are filed as Exhibits (a)(1), (a)(2), (a)(3) and (a)(5) hereto and are incorporated herein by reference. A copy of the FAQ circulated to Airgas employees is filed as Exhibit (a)(4) hereto and is incorporated herein by reference.
Background of the Offer and Reasons for Recommendation
Background of the Offer
Airgas was founded by Chairman and Chief Executive Officer Peter McCausland in 1982, and became a publicly traded company in 1986. Through approximately 400 acquisitions and internal growth, including the acquisition from Air Products of its U.S. packaged gas business in 2002 in connection with Air Products exit from that business, Airgas has become the largest U.S. distributor of industrial, medical, and specialty gases and related hardgoods, such as welding supplies, and has built the largest national distribution network in the packaged gas industry. Airgas has also become a leading U.S. distributor of safety products, the largest U.S. producer of nitrous oxide and dry ice, the largest liquid carbon dioxide producer in the Southeast, and a leading distributor of process chemicals, refrigerants and ammonia products. Airgas more than 14,000 employees work in more than 1,100 locations including branches, cylinder fill plants, air separation plants, production facilities, specialty gas laboratories and regional distribution centers to serve a diversified customer base.
Airgas has delivered superior value to its stockholders since its initial public offering in 1986, with a cumulative total stockholder return (defined as stock price appreciation plus dividends reinvested) of 4,201%1 since that time. This performance represents a compound annual growth rate of total stockholder return of 18% and places Airgas ahead of 94% of companies in the S&P 500 index. We believe that this consistently high growth has been achieved because of our entrepreneurial, service-oriented culture and decentralized management structure. The following charts demonstrate Airgas proven track record.
1 | Market data as of market close on February 4, 2010, one day prior to Air Products publicly disclosing its unsolicited proposal. |
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In mid-October 2009, John McGlade, the Chairman, President and Chief Executive Officer of Air Products, contacted Mr. McCausland and requested to meet without identifying the topic of the meeting. In response to Mr. McGlades request, Mr. McCausland met with Mr. McGlade at Airgas headquarters on October 15, at which time Mr. McGlade made an unsolicited oral proposal to Mr. McCausland to acquire Airgas for $60 per share on an all-stock basis. Mr. McCausland replied that, while his personal view was that the proposal was inadequate and that it would be a poor time for Airgas to enter into any merger transaction, any decision regarding the proposal would rest with the Airgas Board. Mr. McGlade stated twice during the meeting that Air Products would not proceed on a hostile basis.
Following the meeting with Mr. McGlade, Mr. McCausland telephoned W. Thacher Brown, Airgas presiding director at that time, informed him of Mr. McGlades unsolicited verbal proposal and discussed whether to convene a special meeting of the Airgas Board in advance of the Airgas Board meeting that had previously been scheduled for November 5 - 7. Mr. McCausland and Mr. Brown decided to discuss the unsolicited proposal with the Airgas Board at the previously scheduled upcoming meeting.
On October 31, 2009, Mr. McGlade telephoned Mr. McCausland to reiterate his proposal and his expectation that it would be presented to, and considered by, the Airgas Board.
At the Airgas Boards meeting held from November 5 through November 7, 2009, the Airgas Board considered and discussed Airgas strategic direction and reviewed Airgas five-year strategic and financial plan, which was a product of Airgas regular planning process that began in July and was completed in October. In addition, during the meeting, the Airgas Board discussed Air Products unsolicited proposal. After careful consideration of presentations by management and advice from its legal advisors and a review of discussions with the Companys financial advisors, the Airgas Board unanimously concluded that Air Products unsolicited proposal grossly undervalued Airgas and, accordingly, that the Airgas Board had no interest in proceeding to discuss further the proposal with Air Products. Mr. McCausland telephoned Mr. McGlade and informed him of the Airgas Boards determination.
On November 20, 2009, Mr. McGlade telephoned Mr. McCausland and informed Mr. McCausland that he would be sending Mr. McCausland a letter. Mr. McCausland replied that Mr. McGlade stated at their meeting on October 15th that Air Products would not proceed on a hostile basis, to which Mr. McGlade responded that he was under pressure from the Air Products board of directors.
On November 20, 2009, Mr. McGlade sent a letter to Mr. McCausland making an unsolicited proposal to acquire Airgas for $60 per share on an all-stock basis, and requesting a meeting with Airgas and its advisors as soon as possible to move expeditiously toward consummating a transaction. The full text of this letter is set forth as Exhibit (a)(7) and is incorporated by reference herein.
On November 25, 2009, Mr. McCausland wrote to Mr. McGlade indicating that the Airgas Board would consider Air Products stock-for-stock proposal at its upcoming meeting in early December.
On December 7, 2009, the Airgas Board met to consider Air Products unsolicited stock-for-stock proposal. After careful consideration of presentations by management, advice from its legal advisors and financial information and analyses provided to the Company by its financial advisors, the Airgas Board unanimously concluded that Air Products unsolicited stock-for-stock proposal grossly undervalued Airgas, was opportunistic and offered an unattractive currency. Accordingly, the Airgas Board unanimously rejected the proposal and concluded that no purpose would be served by meeting with Air Products to discuss further the $60 per share proposal made by Air Products.
In a December 8, 2009 letter to Mr. McGlade, Mr. McCausland confirmed that the Airgas Board had considered Air Products unsolicited stock-for-stock proposal and had determined that the proposal was not in the best interest of Airgas stockholders and should not be pursued, on the grounds that it grossly undervalues Airgas, proposed an unattractive currency, ignored regulatory issues raised by a combination of the companies and because Airgas Board questioned Air Products ability to manage Airgas business, given Air Products
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decision to exit that very line of business just seven years earlier. The letter also informed Air Products that Airgas objected to the law firm Cravath, Swaine & Moore LLP representing Air Products in connection with any possible acquisition of Airgas, and that Airgas had no intention of waiving or ignoring the conflict created thereby. The text of the letter is set forth below:
Dear John:
The Board of Directors of Airgas has considered your letter of November 20, 2009.
As you know, the Airgas Board carefully considered the same proposal several weeks ago and concluded that the proposed stock-for-stock acquisition of Airgas by Air Products is not in the best interests of our shareholders and should not be pursued. We have again carefully reviewed your proposal and have consulted with our legal and financial advisors. At the meeting called to review your November 20 letter, the Board again unanimously authorized me to advise you that it believes that Air Products is grossly undervaluing Airgas and offering a currency that is not attractive. The Board has no interest in pursuing Air Products unsolicited proposal.
We can certainly understand why Air Products would find an acquisition of Airgas to be appealing to Air Products and its shareholders. Over the last five and ten year periods, Airgas stock has consistently and significantly outperformed Air Products stock, having risen 83% over the last five years (vs. 44% for Air Products stock) and 387% over the last ten years (vs. 166% for Air Products stock). Airgas continues to effectively execute its business plan and is operating well in a difficult environment. We have taken a number of actions that position us to perform even better as the economy improves. Airgas management and its Board are extremely enthusiastic about our companys prospects and are confident of achieving shareholder returns well in excess of what can be derived from Air Products proposal.
We also have concerns about Air Products ability to effectively manage our business, a business that your company exited just seven years ago. The consistently high growth that we have been able to achieve over many years owes much to our entrepreneurial, service-oriented culture and decentralized management structure. The organizational and management structure at Air Products conflicts with ours and would likely reduce rather than create value.
Your letter ignores any mention of the regulatory issues that a combination of our two companies would raise. These issues would slow the process considerably. In this regard, we note that Air Products failed to obtain U.S. antitrust clearance in its last attempt to acquire a major American industrial gas competitor.
While not a factor in our decision, it is important to mention that the advisors representing your company have serious conflicts of interest that we have no intention of waiving or ignoring. Cravath, Swaine & Moore has served as Airgas counsel for financing matters continuously for the past eight years. They have advised us as recently as October (presumably while working with your company on its approach to us) on matters relating to our outstanding indebtedness and our future financing plans. Your legal and financial advisors, from the services they have rendered very recently to Airgas, well understand that the next several months are important ones for our company with respect to its financing plans. It is disturbing that the key advisors on Airgas financing team are now representing an adverse party in a potentially hostile transaction.
The Board of Directors of Airgas reiterates the response which I conveyed to you several weeks ago. We are not interested in pursuing your companys proposal and do not believe that any purpose would be served by a meeting.
Very truly yours,
/s/ Peter McCausland
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On December 17, 2009, Mr. McGlade sent a letter to Mr. McCausland revising Air Products prior $60 per share stock-for-stock proposal, proposing to acquire Airgas for $62 per share with consideration including up to 50% cash. Mr. McGlade stated in the letter that the timing for this combination is excellent, citing the fact that the economy is just beginning to emerge from recession and Air Products belief that waiting may make the combination less attractive in the future. Mr. McGlade also stated that Air Products and its advisors formally requested to meet with Airgas and its advisors as soon as possible and that the companies move expeditiously to consummate a transaction. Mr. McGlade objected to Airgas characterization of Air Products performance and other aspects of Mr. McCauslands December 8th letter. The full text of Mr. McGlades letter is set forth as Exhibit (a)(8) and is incorporated by reference herein.
On December 21, the Airgas Board met to discuss Air Products revised $62 unsolicited proposal and reviewed information provided by management, advice from its legal advisors and financial information and analyses provided to the Company by its financial advisors. On January 4, 2010, the Airgas Board met again to resume consideration of the revised $62 proposal as well as Air Products request to meet as soon as possible to move expeditiously to consummate a transaction. After careful consideration of presentations by management, advice from its legal advisors and financial information and analyses provided to the Company by its financial advisors, the Airgas Board unanimously concluded that Air Products revised $62 unsolicited proposal, at least half of which was to be paid in Air Products stock, grossly undervalued Airgas and its prospects for continued growth and shareholder value creation. Accordingly, the Airgas Board concluded that no purpose would be served by meeting with Air Products to explore further its unsolicited $62 per share proposal. Mr. McCausland sent the following letter to Mr. McGlade informing him of the determination of the Airgas Board:
Dear John:
Our Board of Directors met and thoroughly considered the proposal set forth in your December 17 letter. It is their unanimous view that the Air Products proposal grossly undervalues Airgas. Therefore, the Board is not interested in pursuing your companys proposal and continues to believe that there is no reason to meet.
Airgas management has consistently created long-term shareholder value, as measured by stock price appreciation and total shareholder returns (stock price appreciation plus dividends).
| In every cumulative annual period since 2000, measured from the first of each calendar year to Dec 31, 2009, Airgas stock price has consistently outperformed Air Products with the exception of 2009. |
| Airgas stock price appreciated 80% over the last five years and 415% over the last ten years, compared to just 40% and 145% for Air Products shares over the same periods. |
| Airgas has achieved total cumulative shareholder returns of 22%, 89%, and 434% over the last three, five and ten years respectively, versus Air Products 23%, 56% and 197%. From the time of its initial public offering in December 1986, Airgas total shareholder return has exceeded 4,400% as compared to approximately 1,300% for Air Products over the same period. |
Airgas entrepreneurial culture and customer-centric business model produced operating performance superior to that of Air Products through the last cycle, in expanding and contracting economic conditions. From CY2001 through CY2008, Airgas generated a 24% compound annual growth rate in operating income from continuing operations, compared to Air Products 8%.
Airgas associates, with the support of our Board of Directors and shareholders, have built the most valuable independent industrial gas company in the world. We have an outstanding performance record, and strong prospects for organic and acquisition growth in the coming years. Air Products unsolicited approach is simply an opportunistic attempt to buy Airgas at a bargain price, exploiting a brief anomaly
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in the historic comparative equity market performance of our two companies, just as the economy begins its recovery. Recent performance alone is not indicative of what our respective companies are capable of achieving. Under the terms of Air Products proposal, our shareholders would sacrifice real value and opportunity, and exchange a dynamic growth stock for one that has significantly underperformed Airgas stock over an extended period of time.
While we agree that the benefits of a letter writing campaign between our two companies have been exhausted, we strongly disagree with many of the assertions in your December 17th letter. In particular, we believe that a combination of our two companies could destroy rather than create value; that you underestimate the seriousness of your advisors conflicts; and that your characterization of my one conversation with you is inaccurate and misleading.
Air Products proposal grossly undervalues Airgas and its prospects for continued growth and shareholder value creation. Accordingly, our Board of Directors is not interested in pursuing your companys proposal.
Sincerely yours,
/s/ Peter McCausland
Peter McCausland
Chairman and CEO
On February 1, 2010, Air Products legal advisor from Cravath telephoned Airgas legal advisor, and stated that it was important that a meeting occur between Air Products and Airgas within days rather than weeks, and that it would be best for Air Products stockholders, Airgas stockholdersas well as for Peterfor the parties to reach agreement rapidly on a negotiated sale of Airgas to Air Products. Airgas legal advisor stated that they would consult with Airgas regarding the request for a meeting and that any decision whether to meet rested with Airgas.
Later on February 1, representatives of J.P. Morgan, Air Products financial advisor, contacted an Airgas financial advisor, and also requested a meeting within days. A representative of J.P. Morgan also requested that the Airgas Board be involved in the decision as to whether to meet with Air Products. During the call, representatives of J.P. Morgan also said that a private negotiation would be better for Airgas, its management and Air Products. Airgas financial advisor replied that they would promptly relay Air Products urgent request for a meeting to Airgas.
In each of their respective conversations, both the Airgas legal advisor and the Airgas financial advisor noted that, in light of the Airgas Boards views concerning Air Products prior unsolicited proposals, the Airgas directors may well conclude that the last price proposed by Air Products would not represent a sensible basis to hold any meeting to discuss a possible transaction.
On February 2, 2010, Airgas financial advisors telephoned Air Products financial advisor to inform them that the Airgas Board would evaluate their request to meet at Airgas regularly scheduled Board meeting early in the week of February 8th.
Rather than waiting for the response requested from the Airgas Board, Mr. McGlade sent a letter to Mr. McCausland on February 4, 2010 with an unsolicited proposal to acquire Airgas for a reduced price of $60 per share on an all-cash basis. The letter stated again that the timing for this combination is ideal, noting that the economy was beginning to emerge from recession, and stated that the proposal offered Airgas stockholders immediate liquidity. The letter also stated that Air Products had decided to inform Airgas stockholders of its proposal. The full text of this letter is set forth as Exhibit (a)(9) and is incorporated by reference herein.
Also on February 4, Air Products filed an action against Airgas and members of the Airgas Board in the Delaware Chancery Court, alleging breach of fiduciary duty by Airgas Board in rejecting Air Products
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unsolicited proposals and seeking declaratory and injunctive relief. Please see Additional InformationLitigation Matters for more information. Air Products complaint stated that Air Products owned 1,508,255 Airgas Common Shares, which Air Products later disclosed that it had acquired in open market purchases from January 20 through February 4 at average daily prices ranging from $43.77 to $49.25. On February 5, 2010, Air Products publicly disclosed its February 4 letter.
The Airgas Board met on the morning of February 5, the fourth occasion on which its members discussed and considered the various unsolicited proposals of Air Products, to consider Air Products $60 per share public proposal and, among other matters, to discuss Air Products most recent letter. Also on February 5, Airgas commenced litigation against its long-time counsel, Cravath, Swaine & Moore LLP, in the Court of Common Pleas of Philadelphia County, Pennsylvania, seeking damages and an order requiring Cravath to withdraw from its representation of Air Products in connection with its attempted takeover of Airgas based on Cravaths prior representation of Airgas. Please see Additional InformationLitigation Matters for more information.
In a meeting held on February 8 and 9, the Airgas Board again discussed and considered Air Products unsolicited proposal, and after careful consideration of presentations by management and its financial advisors, and advice from its legal advisors, unanimously determined that the proposal grossly undervalued Airgas and its future prospects and was not in the best interests of Airgas stockholders. Accordingly, the Airgas Board unanimously rejected the proposal and concluded that no purpose would be served by proceeding to meet with Air Products to discuss the inadequate proposal. On February 9, Mr. McCausland sent the following letter to Mr. McGlade informing him of the Airgas Boards determination:
Dear John:
The Board of Directors of Airgas has received your letter dated February 4, 2010 proposing that Air Products acquire all of the outstanding shares of Airgas for $60 per share in cash. At a meeting held yesterday and today, the Board of Directors carefully reviewed your companys latest proposal with the assistance of its financial advisors, Goldman, Sachs & Co. and Bank of America Merrill Lynch, and its legal counsel. After thorough consideration, it is the unanimous view of the Airgas Board of Directors that your unsolicited proposal very significantly undervalues Airgas and its future prospects. Accordingly, the Airgas Board unanimously rejects Air Products $60 per share proposal. Moreover, as we informed you in our letter dated January 4, 2010, your companys prior $62 per share proposal also grossly undervalues Airgas.
Airgas is the largest and most valuable packaged gas business in the world with an unrivaled platform. Airgas continues to effectively execute its business plan and is operating well in a difficult environment. We have taken a number of actions that position us to perform even better as the economy improves. Moreover, Airgas and its stockholders are poised to realize the significant benefits that will result from the substantial infrastructure investment and industry consolidation achieved by Airgas over the last decade. Our country is just beginning to emerge from the worst recession since the Great Depression and your undervalued proposal would deprive our stockholders of the greater value that they will receive simply with the passage of time.
As you are undoubtedly aware, due to the nature of our customers and markets, historically our business has emerged from recession later, but with much greater upside, than yours. Airgas management and its Board are extremely enthusiastic about our companys prospects and are confident of achieving stockholder returns well in excess of what can be derived from Air Products unsolicited and opportunistic proposal.
We note that in your presentation dated February 5th, you state that Timing is excellent as a justification for pursuing Air Products unsolicited proposal at this time. We agree that the timing is excellent for Air Products but it is a terrible time for Airgas stockholders to sell their company. We
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can certainly understand why Air Products would find an opportunistic acquisition of Airgas to be appealing to Air Products and its stockholders. However, it makes no sense for the Airgas stockholders to transfer the future value of Airgas to Air Products at a bargain basement price.
Over the last five and ten year periods preceding the public disclosure of your companys latest proposal, Airgas stock has consistently and significantly outperformed Air Products stock, having risen 75% over the last five years (vs. 25% for Air Products stock) and 471% over the last ten years (vs. 139% for Air Products stock). It is in light of this history that we consider your increasingly urgent demands to negotiate concerning Air Products various proposals, which in our Boards unanimous view grossly undervalue our company and its prospects. If the nascent recovery continues and the growth which we anticipate and are starting to see in our business were to become reflected in our stock price, Air Products would no longer be able to claim that timing is excellent.
Airgas business differs significantly from Air Products and your packaged gas operations in Europe have considerably different characteristics than our packaged gas business in the United States. In contrast to your European business, our U.S. business operates in a highly competitive marketplace which demands distribution of numerous products and services to provide value to our customers. Your company exited that business just eight years ago, selling it to us when it was in disarray. The consistently high growth that we have been able to achieve over many years owes much to our entrepreneurial, service-oriented culture and decentralized management structure. We are, at our core, a people business which has succeeded by effectively motivating our more than 14,000 associates. We believe, based upon our own extensive experiences with Air Products, that the acquisition you are proposing would reduce rather than enhance stockholder value.
We understand that market credibility is paramount and Airgas has, over time, performed significantly better than Air Products on almost any metric, often exceeding market expectations. But we believe that how a company conducts its business is important too. You have chosen legal and financial advisors that have conflicts, even after we expressed our strong objections. That is wholly inappropriate and why we commenced litigation against your legal advisor. We have an affirmative obligation to protect Airgas stockholders and this includes taking the necessary steps to protect our stockholders against grossly undervalued proposals. Our board, which collectively beneficially owns more than 10% of the outstanding common stock, is focused solely on the best interests of our stockholders.
Our Board of Directors, our management team and our thousands of associates are dedicated to creating value for all of our stockholders and that is exactly what we will continue to do by executing on our strategic plan.
Very truly yours,
/s/ Peter McCausland
On February 11, 2010, Air Products and AP Sub commenced the Offer at the same $60.00 price per share in cash as the proposal described in Air Products letter dated February 4. On the same day, Airgas issued a press release requesting that its stockholders take no action in response to the Offer and informing its stockholders that the Airgas Board, in consultation with its independent financial and legal advisors, intends to advise stockholders of its formal position regarding the Offer within ten business days by making available to stockholders and filing with the SEC a solicitation/recommendation statement on Schedule 14D-9.
On February 20, 2010, the Airgas Board met to review the terms of the Offer with the assistance of its financial advisors, Merrill Lynch, Pierce, Fenner & Smith Incorporated (which we refer to as Bank of America Merrill Lynch) and Goldman, Sachs & Co. (which we refer to as Goldman Sachs), and legal advisor, Wachtell, Lipton, Rosen & Katz. During this meeting Bank of America Merrill Lynch and Goldman Sachs each rendered an oral opinion to the Airgas Board, subsequently confirmed in writing, that as of February 20, 2010 and based
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upon and subject to the factors and assumptions set forth in the written opinions, the consideration proposed to be paid to the holders of Airgas Common Shares (other than AP Sub and its affiliates) pursuant to the Offer was inadequate from a financial point of view to such holders. At the meeting, the Airgas Board unanimously reconfirmed its prior determination that the Offer grossly undervalues Airgas and is not in the best interests of Airgas and its stockholders. Accordingly, the Airgas Board unanimously determined to recommend that the Airgas stockholders reject the Offer and not tender their Airgas Common Shares into the Offer. The full text of the respective written opinions of Bank of America Merrill Lynch and Goldman Sachs, each dated February 20, 2010, and each of which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with such opinion, are attached as Annexes B and C, respectively. Bank of America Merrill Lynch and Goldman Sachs provided their respective opinions for the information and assistance of the Airgas Board in connection with its consideration of the Offer. The opinions of Bank of America Merrill Lynch and Goldman Sachs are not a recommendation as to whether or not any holder of Airgas Common Shares should tender such Airgas Common Shares in connection with the Offer or any other matter.
Reasons for Recommendation
In reaching the conclusions and in making the recommendation described above, the Airgas Board consulted with Airgas management and financial and legal advisors, and took into account numerous factors, including but not limited to the factors listed below.
The Airgas Board believes that the Offer grossly undervalues Airgas in light of Airgas extraordinary track record and growth prospects, that the Offers timing is extremely opportunistic, and that regulatory concerns and the Offers litany of conditions create significant uncertainty as to when if ever Airgas stockholders would receive consideration under the Offer. In addition, Air Products tactics are calculated to divert attention from the Offers serious deficiencies. The Airgas Board is confident that Airgas will, consistent with its history, deliver greater value to its stockholders by executing its strategic plan than would be obtained under the Offer.
I) | The Offer grossly undervalues Airgas |
The Board believes that the Offer grossly undervalues Airgas as it does not reflect the underlying value of Airgas assets, operations and strategic plan, including its industry-leading position, unrivaled platform and future growth prospects. Since its founding, Airgas has delivered extraordinary results for its stockholders and, by virtue of its industry position, strategic direction, management and culture, Airgas is poised to continue to provide extraordinary results for its stockholders. Thus, the Board believes that the Offer is disadvantageous to Airgas stockholders:
| The Offer does not reflect the value inherent in Airgas future prospects. The Airgas Board has carefully reviewed, and in November approved, our Companys five-year strategic and financial plan, which was the product of our customary planning process, which for the current plan commenced in July 2009 and was completed in October 2009. The Airgas Board has a high degree of confidence in managements plans and in the strategic planning process. This confidence is supported by Airgas history of achieving or exceeding its strategic plans over many years and through many business cycles. |
The Board believes that the value to stockholders reflected in the Companys current strategic plan, derived by applying present value calculations to Airgas projected future stock prices, is equal to or greater than the value achievable for stockholders with the Offer. The standalone values of Airgas from executing its strategic plan considered by the Airgas Board do not give effect to any control premium. The Airgas Boards belief has been corroborated by industry analysts and financial commentators who have issued reports and made statements that the Offer significantly undervalues Airgas prospects. Thus, our Board believes that Airgas will deliver more value to Airgas stockholders by operating the business in accordance with the current strategic plan than by accepting the Offer.
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| Airgas extraordinary historical results provide the Board confidence as to Airgas future. Airgas has delivered superior value to its stockholders since its initial public offering in 1986, with a cumulative total stockholder return (defined as stock price appreciation plus dividends reinvested) of 4,201%2 since that time, which represents a compound annual growth rate of 18% and places Airgas ahead of 94% of companies in the S&P 500 index. Our record of sustained growth for the calendar years 2001-2009 is similarly stellar: the compound annual growth rate during that period for revenues, EBITDA, adjusted cash from operations3 and diluted earnings per share are 11%, 17%, 21% and 20%, respectively. Importantly, the drivers of our historical success remain in place to enable our Company to continue its extraordinary performance. |
A comparison of Airgas performance to Air Products is also instructive. With the exception of the 2009 calendar year, in every cumulative annual period since 2000, measured from the first of each calendar year to December 31, 2009, Airgas stock price has consistently outperformed that of Air Products. Airgas stock price appreciated 80% over the last five years and 415% over the last ten years, compared to just 40% and 145% for Air Products shares over the same periods. In addition, Airgas has achieved total cumulative stockholder returns of 89% and 435% over the last five and ten years, respectively, versus Air Products 56% and 198%. Airgas has also significantly outperformed Air Products in compound annual growth rate of revenue and earnings per share since 2001. For the calendar years 2001 through 2008, Airgas generated a 24% compound annual growth rate in operating income from continuing operations, compared to Air Products 8%.
| The Offer does not reflect the value of Airgas as the largest and most valuable packaged gas business in the world with an unrivaled platform. Airgas is the largest U.S. distributor of industrial, medical and specialty gases (delivered in packaged or cylinder form) and hardgoods, such as welding equipment and supplies. The U.S. remains the largest market for these products in the world and even Air Products has publicly acknowledged its expectations that North America will account for more than a quarter of global GDP growth in the next five years. Airgas position in its industry is preeminent and the Company is poised to continue to enhance stockholder value through organic growth and acquisitions. Airgas national scale, strong local presence and broad product and service offerings deliver a compelling value proposition to its diversified customer base in a very attractive market. |
| Airgas has a unique culture that propels its success. We believe that Airgas record of successful growth and excellent results for our stockholders, sustained over many years, has been achieved because of our entrepreneurial, service-oriented culture and decentralized management structure. A major contributor to these results has been our ownership culture, as exemplified by our Boards ownership of more than 10% of the outstanding Airgas Common Shares, and by the fact that many of our associates have invested in Airgas through 401(k) accounts, the Employee Stock Purchase Plan and personal accounts. This ownership culture is one of Airgas distinctive strengths. |
We believe that our directors substantial investment in the Company is a very positive factor, affirming their faith in our Company and indicating that their interests are aligned with the interests of the other stockholders. As a result of our ownership culture, our directors, management and associates are highly incentivized to maximize stockholder value.
2 | Market data as of market close on February 4, 2010, one day prior to Air Products publicly disclosing its unsolicited proposal. |
3 | Reconciliation of adjusted cash from operations is available on the airgas.com website Investor Info/GAAP Reconciliation and is also available in the appendix of the presentation filed as Exhibit (a)(6) hereto. |
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II) | The timing of the Offer is extremely opportunistic |
The Board believes that the timing of the Offer is extremely opportunistic and disadvantageous to Airgas stockholders:
| The timing of the Offer is extremely opportunistic. Airgas EBITDA has increased every year over the prior year for the past 22 years preceding the 2009 recession, with only a few very minor exceptions. The timing of the Offer seeks to exploit Airgas only significant decline in annual EBITDA in 22 years, |
as can be seen in the chart entitled Proven Track Record under Background of the Offer, as well as a 10% stock price decline in a single trading day (January 29) attributable to, in our view, a significant market overreaction to a 2 cent miss in quarterly earnings guidance. We believe that Air Productswhose fiscal 2009 earnings were more than 20% below the low end of its initial guidance for that yearclearly understands this, but is attempting to create and seize an opportunity by incorrectly attributing great significance to our most recent quarterly results. The Airgas Board believes the difference between the $0.67 low-end of earnings guidance and the reported $0.65 of adjusted earnings per share4 for Airgas most recently completed quarter does not affect Airgas earnings capacity or intrinsic value. |
| Airgas historically lags going into and out of recessionary periods and emerges with significant upside. Over the past decade, Airgas has made a substantial investment in infrastructure and achieved the preeminent position in a consolidating industry. Historically, Airgas has emerged strongly from recessionary periods, as evidenced by a 346% increase in the trading price of Airgas Common Shares in the 22 months from June 2000. Airgas same-store sales are now beginning to rebound, and the most recently completed quarter reflected the first sequential improvement in daily sales in a year. Airgas and its stockholders are poised to realize significant benefits as the economy emerges from the worst recession since the Great Depression, making this precisely the wrong time to sell Airgas. |
| Air Products tactics seek to disadvantage Airgas stockholders. We believe Air Products extreme urgency in launching the Offeran offer which in our view cannot be completed for many monthsreflects its desire to act when the claimed premium would appear attractive. For example, the average closing price of Airgas shares in January and February before public announcement of Air Products $60 proposal was $47.34; the average daily prices which Air Products paid in their open market purchases of Airgas shares prior to the decline in stock price on January 29 was between $47.09 and $49.25 per share. Thus, when the Airgas closing price was $43.53 on February 4, Air Products acted to take advantage of a temporary valuation anomaly in its attempt to transfer the future value of Airgas to Air Products at a bargain basement price. |
| Air Products well knows that the risk to the success of its Offer increases dramatically as Airgas resumes the growth and success which have been the hallmarks of its performance over its history. Air Products has repeatedly declared that the timing for this combination is ideal and the timing for this combination is excellent... [t]he economy is just beginning to emerge from recession... The timing is excellent for Air Productsbut very poor for Airgas stockholdersin light of the depressed value of the Airgas Common Shares prior to the announcement of the Offer. We believe that Air Products decided that it could not wait any longer to launch its Offer because the improving economic conditions that Air Products observed were at risk of soon becoming reflected in Airgas stock price. |
III) | Airgas has received inadequacy opinions from its financial advisors |
The Airgas Board considered the fact that Bank of America Merrill Lynch and Goldman Sachs each rendered an opinion to the Airgas Board, subsequently confirmed in writing, that as of February 20, 2010 and based upon and subject to the factors and assumptions set forth in the written opinions, the consideration
4 | Airgas adjusted earnings per diluted share of $0.65 for the three months ended December 31, 2009 is the sum of the following: (1) earnings per share of $0.56, (2) a debt extinguishment charge of $0.05, and (3) a multi-employer pension plan withdrawal charge of $0.04. Please see Airgas Current Report on Form 8-K filed with the Commission on January 28, 2010 for more information. |
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proposed to be paid to the holders of Airgas Common Shares (other than AP Sub or its affiliates) pursuant to the Offer was inadequate from a financial point of view to such holders. The full text of the respective written opinions of Bank of America Merrill Lynch and Goldman Sachs, each dated February 20, 2010, and each of which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with such opinion, are attached as Annexes B and C, respectively. Bank of America Merrill Lynch and Goldman Sachs provided their respective opinions for the information and assistance of the Airgas Board in connection with its consideration of the Offer. The opinions of Bank of America Merrill Lynch and Goldman Sachs are not a recommendation as to whether or not any holder of Airgas Common Shares should tender such Airgas Common Shares in connection with the Offer or any other matter.
IV) | The Offer is highly uncertain and would provide considerably deferred value |
The Board believes that the Offer is highly uncertain and would require a significant amount of time to complete, even under the most favorable circumstances.
| The Offer is subject to significant regulatory concerns. Despite Air Products public statements designed to minimize the regulatory risks of its Offer, those regulatory risks are significant. In Airgas view, the Offer is highly likely to result in the issuance of a second request by United States antitrust authorities under the HSR Act. A second request could result in a substantial delay before Airgas stockholders would receive the certain value which Air Products claims to be offering. Thus, any comparison of the current value which Air Products claims to be offering against the benefits of Airgas continued operations must take into account both the time value of money and the likelihood, in our Boards view, that Airgas historically excellent performance will resume. |
| The regulatory concerns are amplified because Air Products failed to clear regulatory hurdles in its last attempt to acquire a major American industrial gas company. In 2000, Air Products abandoned its offer to acquire the U.S. operations of The BOC Group following its failure to obtain antitrust clearancedespite publicly claiming it had developed a detailed divestiture plan that addressed the competitive issues. Notwithstanding Air Products failure to obtain U.S. antitrust clearance in its last attempt to acquire a major American industrial gas company, the Offer does not contain a commitment that Air Products will take all actions necessary to obtain the approvals required to consummate the proposed acquisition. Therefore, the carefully crafted statement in Air Products Offer that Air Products is prepared to make appropriate divestitures to obtain necessary regulatory approvals provides little comfort. These concerns are exacerbated by Air Products history and by the many subjective and hair trigger conditions set forth in their Offer, as described below. |
V) | The quantity and nature of the Offers conditions create major uncertainty and risk |
The Board believes that the numerous conditions set forth in the Offer create significant uncertainty and risk as to whether the Offer can be completed and the timing for completion.
| The Offer contains an extraordinarily lengthy list of conditions. As described under Item 2 and in Annex A of the Offer, the Offer is subject to numerous conditions, including, among others, the following conditions: |
| the Impairment Condition, |
| No Material Adverse Effect Condition, |
| the Market Index Condition, |
| the No Lawsuits Condition, |
| the No Diminution of Benefits Condition, |
| the No Material Change Condition, |
| the No Adverse Effect on Contracts Condition, |
| the Stockholder Ownership Condition, |
| the Minimum Tender Condition, |
| the Rights Plan Condition, |
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| the Section 203 Condition, |
| the Certificate Condition, and |
| the HSR Condition. |
| Airgas stockholders have no assurance that the Offer will ever be completed. The Offer is illusory, as some of the Offers conditions will not be satisfied as a result of Airgas publicly disclosed documents and previously announced plans, while others are subject to de minimis materiality standards and can be invoked by Air Products in its sole discretion. The illusory nature of the Offer is illustrated by the condition that will not be satisfied if Airgas pays its already-declared regular quarterly dividend. On January 28, 2010, Airgas raised its quarterly cash dividend to $0.22 per share, which was Airgas fifth dividend increase in the past three years. Payment of this dividend, which was publicly announced prior to the Offer to be payable on March 31, 2010 to stockholders of record as of March 15, 2010 (which dividend declaration is described in Air Products Schedule TO), will enable Air Products to terminate its Offer pursuant to its terms. Another example of the Offers illusory nature is that Air Products, under the terms of the Offer, is permitted to terminate the Offer if any indebtedness of Airgas is subject to acceleration or otherwise adversely affected in connection with the Offernotwithstanding that Airgas publicly available debt instruments, such as its credit agreement, provide for acceleration and/or similar rights in the event that the Offer is consummated. In addition, many of the conditions to the Offer are subject to Air Products sole discretion and many establish a de minimis materiality standard making it easy for Air Products to claim that a condition is not satisfied and terminate the Offer. Indeed, Air Products would have the right to declare a condition not satisfied even if the failure to be satisfied was caused by the action or inaction of Air Products. |
VI) | Air Products tactics have been designed to distract and divert attention from the grossly inadequate and highly opportunistic nature of its Offer |
| Air Products increasingly shrill complaints are designed to divert attention from the grossly inadequate nature of Air Products Offeran offer that the Airgas Board believes is so deficient that it does not make sense as a starting point for any negotiations. |
| Air Products attempt to treat Airgas third quarter earnings as indicative of Airgas intrinsic value is a deliberate effort to talk down the value of the company it seeks to opportunistically acquire and to divert attention from Airgas sustained record of extraordinary performance as well as the grossly undervalued price Air Products is seeking to pay. |
| Air Products pre-planned strategy of attacking Airgas Chairman reflects, in our view, a total misunderstanding of Airgas culture, which would impede Air Products ability to run Airgas successfully. This strategy was foreshadowed by Air Products legal advisor in the urgent request for a meeting in early February and the cynical, spurious assertions about indisputably lawful option exercises. The shocked reactions of Airgas associates to Air Products tactics portend serious problems for Air Products if it were to succeed in acquiring Airgas. |
| Air Products assertions that our Chairman, who is Airgas largest stockholder, has a conflict of interest in considering the Offer, is, in our Boards view, illogical and disingenuous. The Airgas Board regards these assertions to be part of Air Products pre-planned strategy of attacking our Chairman. In stark contrast to Airgas ownership culture, seven of Air Products eleven directors own no stock in Air Products according to Air Products definitive proxy statement for its recent annual meeting of stockholders. In addition, Air Products Chairmans disclosed annual compensation for fiscal year 2009 is more than five times greater than the value of the unrestricted shares of Air Products that he owns.5 |
5 | This calculation is derived from Air Products definitive proxy statement for its most recent annual meeting of stockholders and assumes an Air Products stock price of $70. It does not include awards made to Mr. McGlade of restricted stock, stock options and deferred stock units. |
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VII) | An acquisition of Airgas by Air Products would likely reduce rather than enhance stockholder value |
Air Products has a poor acquisition track record, little experience relevant to Airgas business and a synergy plan that demonstrates its fundamental misunderstanding of our business. This is particularly concerning if Air Products again revises its Offer to include stock.
| Air Products has intentionally downplayed the significant differences between the European and U.S. packaged gas industries. The packaged gas industries in the U.S. and Europe, in fact, have very little in common. In contrast to Air Products European business, Airgas U.S. business operates in a highly competitive marketplace in which customers demand distribution of numerous products and services, commonly on a just-in-time basis. Air Products European packaged gas business, which is much smaller than Airgas, operates in a more consolidated and vertically integrated environment. Airgas concerns were significantly heightened by remarks which Air Products Chairman made on February 17 at an industry conference. In these remarks, Air Products Chairman touted supply chain synergies to be derived by Air Products from consolidating filling locations, consolidating gas plant locations, moving from local delivery to hub-and-spoke delivery and utilizing shared services for packaged gas operations and project management. |
Air Products repeated suggestions that a lack of scale was the reason they were unsuccessful in the U.S. packaged gas business years ago, and that the scale of Airgas business in the U.S. will allow for synergies to be achieved now, are misguided. In this regard, when we acquired Air Products packaged gas distribution business in 2002, the business had been deprived of capital and was struggling to provide competitive levels of customer service. We are concerned that Air Products is once again demonstrating a fundamental misunderstanding of the highly local, customer-centric nature of the U.S. packaged gas distribution business. We believe that its restructuring of our business model would significantly harm relations with customers, strengthen competitors, ultimately cause severe damage to the business that we have nurtured and developed over nearly 30 years, and reduce rather than enhance stockholder value.
| Air Products acquisition history raises serious concerns. Air Products acquisition history raises serious questions about its ability to successfully manage Airgas were it to succeed in acquiring our company. In the past 10 years, Air Products has spent $1.8 billion on acquisitions and recorded approximately $400 million of impairments and losses related to those acquisitions. In contrast, Airgas has executed more than four times the number of acquisitions as Air Products in the last decade, while recording less than 1/10th of the acquisition and restructuring charges related to acquisitions as Air Products did during this time. Included in this destruction of stockholder value through acquisitions is Air Products failed integration of American Homecare Supply, which it purchased in 2002 for approximately $165 million. Over the ensuing three years, Air Products spent over $200 million on acquiring additional homecare businesses. After continued underperformance of its home healthcare businesses, Air Products announced a strategic option review in April 2008. Air Products proceeded to sell its entire home healthcare portfolio in 2008 and 2009 and recorded pre-tax impairment charges of $329.2 million in 2008 and $48.7 million in 2009. In addition, a similar example of stockholder value destruction is Air Products incurrence of $730 million in charges and losses on unwinding currency hedges related to its aborted attempt to acquire The BOC Group, an acquisition Air Products could not complete because it failed to obtain antitrust clearance for the proposed transaction. |
The foregoing discussion of the information and factors considered by the Board is not meant to be exhaustive, but includes the material information, factors and analyses considered by the Board in reaching its conclusions and recommendations. The members of the Airgas Board evaluated the various factors listed above in light of their knowledge of the business, financial condition and prospects of Airgas and considered the advice of the Boards financial and legal advisors. In light of the number and variety of factors that the Board considered, the members of the Board did not find it practicable to assign relative weights to the foregoing
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factors. However, the recommendation of the Board was made after considering the totality of the information and factors involved. In addition, individual members of the Board may have given different weight to different factors.
In light of the factors described above, the Airgas Board has unanimously determined that the Offer is not in the best interests of Airgas stockholders. Therefore, the Airgas Board unanimously recommends that the stockholders reject the Offer and not tender their shares to Air Products for purchase pursuant to the Offer.
ITEM 5. | PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED |
Airgas has retained Bank of America Merrill Lynch and Goldman Sachs Group in connection with, among other things, Airgas analysis and consideration of, and response to, the Offer. Both financial advisors will be paid customary fees for such services, will be reimbursed for their respective reasonable out-of-pocket expenses (including fees and disbursements of their respective legal counsel), and will be indemnified against certain liabilities relating to or arising out of the engagement.
Airgas has engaged Innisfree M&A Incorporated (Innisfree) to assist it in connection with Airgas communications with its stockholders in connection with the Offer. Airgas has agreed to pay customary compensation to Innisfree for such services. In addition, Airgas has agreed to reimburse Innisfree for its reasonable out-of-pocket expenses and to indemnify it and certain related persons against certain liabilities relating to or arising out of the engagement.
Airgas has also retained Joele Frank, Wilkinson Brimmer Katcher (Joele Frank) as its public relations advisor in connection with the Offer. Airgas has agreed to pay customary compensation to Joele Frank for such services. In addition, Airgas has agreed to reimburse Joele Frank for its reasonable out-of-pocket expenses and to indemnify it and certain related persons against certain liabilities relating to or arising out of the engagement.
Except as set forth above, neither Airgas nor any person acting on its behalf has or currently intends to employ, retain or compensate any person to make solicitations or recommendations to the stockholders of Airgas on its behalf with respect to the Offer.
ITEM 6. | INTEREST IN SECURITIES OF THE SUBJECT COMPANY |
No transactions with respect to Airgas Common Shares have been effected by Airgas or, to Airgas knowledge after making reasonable inquiry, by any of its executive officers, directors, affiliates or subsidiaries during the past 60 days, except as described below:
Name of Person |
Transaction Date | Number of Shares |
Price Per Share ($) |
Nature of Transaction | ||||
Leslie J. Graff |
February 8, 2010 | 2,000 | 6.94 | Exercise of Stock Options | ||||
Peter McCausland |
January 5, 2010 | 150,000 | 8.99 | Exercise of Stock Options | ||||
Peter McCausland |
January 5, 2010 | 150,000 | 5.50 | Exercise of Stock Options | ||||
Paula A. Sneed |
December 31, 2009 | 8.81 | N/A | Award of Phantom Stock pursuant to Airgas deferred compensation plan as a result of reinvestment under the plan of dividends declared and paid with respect to shares of Airgas Common Shares underlying the Phantom Stock |
The transactions described above were executed in accordance with applicable law and company policy, including preclearance by company counsel of stock option exercises.
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ITEM 7. | PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS |
Airgas routinely maintains contact with other participants in its industry regarding a wide range of business transactions. It has not ceased, and has no intention of ceasing, such activity as a result of the Offer. Airgas policy has been, and continues to be, not to disclose the existence or content of any such discussions with third parties (except as may be required by law) as any such disclosure could jeopardize any future negotiations that Airgas may conduct.
Except as described in the preceding paragraph or otherwise set forth in this Statement (including in the Exhibits to this Statement) or as incorporated in this Statement by reference, Airgas is not currently undertaking or engaged in any negotiations in response to the Offer that relate to, or would result in, (i) a tender offer for, or other acquisition of, Airgas Common Shares by Airgas, any of its subsidiaries or any other person, (ii) any extraordinary transaction, such as a merger, reorganization or liquidation, involving Airgas or any of its subsidiaries, (iii) any purchase, sale or transfer of a material amount of assets of Airgas or any of its subsidiaries or (iv) any material change in the present dividend rate or policy, or indebtedness or capitalization, of Airgas.
Except as described above or otherwise set forth in this Statement (including in the Exhibits to this Statement) or as incorporated in this Statement by reference, there are no transactions, resolutions of the Board, agreements in principle or signed contracts in response to the Offer that relate to, or would result in, one or more of the events referred to in the preceding paragraph.
ITEM 8. | ADDITIONAL INFORMATION |
Litigation Matters
On February 4, 2010, Air Products filed an action against Airgas and members of its Board in the Delaware Court of Chancery, styled Air Products and Chemicals, Inc. v. Airgas, Inc., et al., Civil Action No. 5249-CC (the Delaware Action). In the suit, Air Products seeks an order declaring, among other things, that members of Airgas Board breached their fiduciary duties in considering and rejecting Air Products offers and by not forming a special committee of independent directors to consider and negotiate Air Products offers; compelling the members of Airgas Board to form a special committee of independent directors to consider and negotiate Air Products offer; enjoining Airgas and the members of its Board from actions that would interfere with Air Products offer in violation of their fiduciary duties; and awarding Air Products costs and attorneys fees. On February 11, 2010, Air Products filed an amended complaint, adding a claim that members of Airgas Board breached their fiduciary duties by permitting Airgas Chairman and Chief Executive Officer Peter McCausland to exercise options to purchase 300,000 shares of Airgas stock. In addition, the Amended Complaint seeks an order declaring that Cravath, Swaine & Moore LLP, counsel to Air Products, is not disqualified from advising Air Products. On February 15, 2009, Air Products filed a motion in the Delaware Action seeking a determination that Cravath is not disqualified from advising Air Products and may appear in the action on behalf of Air Products. On February 22, 2010, the Company and its directors will file an Answer in the Delaware Action denying the material allegations of the Amended Complaint. The Company and its directors believe that the claims made by Air Products are without merit and intend to defend them vigorously.
On February 5, 2010, Airgas commenced litigation against Cravath in the Court of Common Pleas of Philadelphia County, Pennsylvania, styled Airgas, Inc. v. Cravath, Swaine & Moore, LLP, Civil Action No. 000857 Feb. 5, 2010) (the Pennsylvania Action). In the action, Airgas alleges that Cravath is conflicted from representing Air Products in its attempted acquisition of Airgas because Airgas is a client of Cravath and seeks, among other things, an injunction restraining Cravath from representing Air Products in connection with its offer for Airgas and damages. On February 9, 2010, the Court in the Pennsylvania Action denied Airgas motion for a temporary restraining order and scheduled an evidentiary hearing on Airgas motion for a preliminary injunction for February 16, 2010. On February 12, 2010, Cravath removed the Pennsylvania Action to the United States District Court for the Eastern District of Pennsylvania, styled Airgas, Inc. v. Cravath
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Swaine & Moore, LLP, No. 10-CV-612. On February 16, 2010, Cravath filed a motion asking the Court to abstain and/or stay consideration of Airgas motion to disqualify Cravath in light of Air Products claim in the Delaware Action, which motion Airgas opposed on February 17, 2010. If Cravaths motion is granted, the Company will proceed with its motion to disqualify Cravath in the Delaware Action.
Five putative class action lawsuits have been commenced by Airgas stockholders against Airgas and/or the members of the Airgas Board in the Delaware Court of Chancery, styled Hollywood Police Officers Retirement System v. Airgas, Inc., et al., Civil Action No. 5256-CC (filed Feb. 9, 2010); Montgomery County Employees Ret. Fund v. Airgas, Inc., et al., Civil Action No. 5259-CC (filed Feb. 9, 2010); City of Pontiac Gen. Employees Ret. System & City of Pontiac Policemens & Firemens Ret. System v. Peter McCausland., et al., Civil Action No. 5262-CC (filed Feb. 9, 2010); La. Mun. Police Employees Ret. System v. Airgas, Inc., et al., Civil Action No. 5264-CC (filed Feb. 10, 2010); and Plumbers Union Local No. 12 Pension Fund v. W. Thacher Brown., et al., Civil Action No. 5271-CC (filed Feb. 16, 2010). These suits variously allege, among other things, that the Airgas Board violated its fiduciary duties to Airgas stockholders in considering and rejecting Air Products offers. The plaintiffs variously seek an order declaring the Airgas Board breached its fiduciary duties; requiring the Airgas Board to evaluate Air Products offers and/or alternative transactions that would maximize stockholder value, including conducting an auction of Airgas and/or a market-check of Airgas value; restricting the Airgas Boards use of certain defensive provisions including its Rights Plan; and awarding compensatory damages, costs and attorneys fees. The Company and its directors believe that the claims made by the stockholder plaintiffs are without merit and intend to defend them vigorously.
Regulatory Approvals
U.S. Antitrust Clearance
Under the HSR Act, Air Products is required to file a Notification and Report Form with the Antitrust Division of the U.S. Department of Justice (the Antitrust Division) and the Federal Trade Commission (the FTC) relating to its proposed acquisition of Airgas. Airgas will be required to submit a responsive Notification and Report Form with the FTC and the Antitrust Division on or before 5:00 p.m. on the tenth day following Air Products filing of its Notification and Report Form. In its Schedule TO, AP Sub stated that Air Products plans to file a Notification and Report Form as promptly as possible after the date hereof. To our knowledge, Air Products has not yet filed any Notification and Report Form with the Antitrust Division or the FTC in connection with the Offer.
Under the provisions of the HSR Act applicable to the Offer, the acquisition of Airgas voting securities pursuant to the Offer may be consummated following the expiration of a 15-day waiting period following the filing by Air Products of its Notification and Report Form with respect to the Offer, unless Air Products receives a request for additional information or documentary material from the Antitrust Division or the FTC or unless the antitrust agencies grant early termination of the waiting period. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC issues a request for additional information or documentary material concerning the Offer, the waiting period will expire 10 days after the date Air Products certifies substantial compliance with the request, unless otherwise extended by court order.
At any time before or after Air Products acquisition of Airgas voting securities pursuant to the Offer, the Antitrust Division or the FTC could take such action under the antitrust laws as either deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Airgas voting securities pursuant to the Offer, or seeking the divestiture of Airgas voting securities acquired by Air Products or the divestiture of substantial assets of Airgas or its subsidiaries or Air Products or its subsidiaries. State attorneys general and private parties may also bring legal action under the antitrust laws. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made, or, if such a challenge is made, the result thereof.
If any waiting period under the HSR Act applicable to the Offer has not expired or been terminated prior to the expiration date of the Offer, or if the FTC, the Antitrust Division, a state attorney general, or a private party obtains an order enjoining the purchase of Airgas voting securities, then Air Products will not be obligated to proceed with the Offer or the purchase of any Airgas voting securities not previously purchased pursuant to the
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Offer. Additionally, Air Products may terminate the Offer if any action, proceeding, injunction, order or decree becomes applicable to Air Products that seeks to restrain or prohibit the exercise by Air Products of its full rights of ownership or operation of all or a portion of Air Products business or assets or those of Airgas. Please see Annex A for more information regarding conditions to the Offer.
Foreign Antitrust Considerations
Airgas conducts operations outside the United States, principally in Canada and to a lesser extent Mexico, Russia, Dubai and Europe. In the fiscal year ended March 31, 2009, Airgas revenues derived from foreign countries based on the point of sale were $86 million. The Offer may be subject to antitrust filings in those countries. Competition authorities in those countries may refuse to grant required approvals or clearances, bring legal action under applicable foreign antitrust laws seeking to enjoin the purchase of Airgas voting securities pursuant to the Offer, or seek the divestiture of Airgas voting securities acquired by Air Products or the divestiture of substantial assets of Airgas or its subsidiaries or Air Products or its subsidiaries. There can be no assurance that Air Products will obtain all required foreign antitrust approvals or clearances or that a challenge to the Offer by foreign competition authorities will not be made, or, if such a challenge is made, the result thereof.
Delaware Business Combinations Statute
Airgas is subject to the provisions of Section 203 of the DGCL, which imposes certain restrictions upon business combinations involving Airgas. The following description is not complete and is qualified in its entirety by reference to the provisions of Section 203 of the DGCL. In general, Section 203 of the DGCL prevents a Delaware corporation such as Airgas from engaging in a business combination (which is defined to include a variety of transactions, including mergers such as the Second-Step Merger proposed by Air Products) with an interested stockholder for a period of three years following the time such person became an interested stockholder unless:
| prior to such time the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
| upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
For purposes of Section 203 of the DGCL, the term interested stockholder generally means any person (other than the corporation and any direct or indirect majority-owned subsidiary of the corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the corporation, or (ii) is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates of such person.
A Delaware corporation may elect not to be covered by Section 203 of the DGCL in its original certificate of incorporation or through an amendment to its certificate of incorporation or bylaws approved by its stockholders. An amendment electing not to be governed by Section 203 of the DGCL is not effective until 12 months after the adoption of such amendment and does not apply to any business combination between a Delaware corporation and any person who became an interested stockholder of such corporation on or prior to such adoption.
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Neither Airgas Certificate nor Bylaws exclude Airgas from the coverage of Section 203 of the DGCL. Unless Air Products acquisition of 15% or more of the Airgas Common Shares is approved by the Board before the Offer closes, Section 203 of the DGCL will prohibit consummation of the Second-Step Merger (or any other business combination with Air Products) for a period of three years following consummation of the Offer unless each such business combination (including the Second-Step Merger) is approved by the Airgas Board and holders of 66-2/3% of the Airgas Common Shares, excluding Air Products, or unless Air Products acquires at least 85% of the Airgas Common Shares in the Offer. The provisions of Section 203 of the DGCL would be satisfied if, prior to the consummation of the Offer, the Airgas Board approves the Offer.
The Airgas Certificate
Article 6 of the Airgas Certificate provides that approval of a merger or other business combination with an Interested Stockholder (generally, a stockholder who is the direct or indirect beneficial owner of 20% or more of the voting power of Airgas outstanding voting stock or an affiliate or associate thereof) requires the affirmative vote of holders of 67% of the voting power of the outstanding voting stock unless such merger is approved by a majority of Airgas disinterested directors or certain fair price conditions are met.
Stockholder Rights Agreement
With its stockholders interests in mind, and like many companies, Airgas has taken measures to protect its value for its stockholders. One of these measures is the Rights Agreement, which is similar to rights agreements adopted by many other public companies. The purpose of the Rights Agreement is to prevent third parties from opportunistically acquiring Airgas in a transaction that the Airgas Board believes is not in the best interests of Airgas stockholders. The Rights Agreement requires any party seeking to acquire 15% or more of the outstanding Airgas Common Shares to obtain the approval of the Airgas Board or else the Rights held by Airgas stockholders other than the acquiror become exercisable for Airgas Common Shares or preferred stock of Airgas, or common stock of the acquiror, at a discounted price that would make the acquisition prohibitively expensive. The Airgas Board believes the Rights Agreement has helped Airgas stockholders at this time by effectively preventing Air Products from opportunistically acquiring Airgas at a price that the Airgas Board believes is inadequate for the reasons discussed above. At the meeting of the Airgas Board on February 20, 2010, the Airgas Board unanimously resolved that the Distribution Date under the Rights Agreement will be deferred until the earlier of (i) the close of business on the tenth calendar day after the Stock Acquisition Date (as defined in the Rights Agreement) and (ii) such date as may be determined by the Airgas Board.
Appraisal Rights
Holders of Airgas Common Shares do not have appraisal rights as a result of the Offer. However, if the Second-Step Merger is consummated, holders of Airgas Common Shares in connection with the Second-Step Merger will have certain rights pursuant to the provisions of Section 262 of the DGCL to dissent and demand appraisal of their Airgas Common Shares. Under Section 262, dissenting stockholders who comply with the applicable statutory procedures will be entitled to receive a judicial determination of the fair value of their Airgas Common Shares (exclusive of any element of value arising from the accomplishment or expectation of the proposed merger) and to receive payment of such fair value in cash, together with a fair rate of interest, if any. Any such judicial determination of the fair value of the Airgas Common Shares could be based upon factors other than, or in addition to, the price per share to be paid in the proposed merger or the market value of the Airgas Common Shares. The value so determined could be more or less than the price per share to be paid in the proposed merger.
Delaware Law
The Second-Step Merger would need to comply with various applicable procedural and substantive requirements of Delaware law. Several decisions by Delaware courts have held that, in certain circumstances, a controlling stockholder of a corporation involved in a merger has a fiduciary duty to the other stockholders that requires the merger to be fair to such other stockholders. Air Products would be a controlling stockholder if the
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holders of at least a majority of the Airgas Common Shares accept the Offer and their shares are purchased by Air Products pursuant to the Offer. In determining whether a merger is fair to minority stockholders, Delaware courts have considered, among other things, the type and amount of consideration to be received by the stockholders and whether there were fair dealings among the parties.
Forward-Looking Statements.
This Schedule 14d-9 contains statements that are forward looking, as that term is defined by the Private Securities Litigation Reform Act of 1995, as amended, or by the SEC in its rules, regulations and releases. These statements include, but are not limited to: our having strong prospects for organic and acquisition growth in the coming years; the economy just beginning its recovery; the view that under the terms of Air Products proposal, our stockholders would sacrifice real value and opportunity; our belief that a combination of our two companies could destroy rather than create value; our belief that the Offer would be highly likely to be subject to substantial delays related to U.S. antitrust clearance; and our prospects for continued growth and stockholder value creation. We intend that such forward-looking statements be subject to the safe harbors created by the Private Securities Litigation Reform Act of 1995, as amended. All forward-looking statements are based on current expectations regarding important risk factors and should not be regarded as a representation by us or any other person that the results expressed therein will be achieved. Airgas assumes no obligation to revise or update any forward-looking statements for any reason, except as required by law. Important factors that could cause actual results to differ materially from those contained in any forward-looking statement include: adverse changes in customer buying patterns resulting from further deterioration in current economic conditions; weakening in the operating and financial performance of our customers, which can negatively impact our sales and ability to collect our accounts receivable; postponement of projects due to the recession; customer acceptance of price increases; the success of implementing and continuing our cost reduction programs; supply cost pressures; increased industry competition; our ability to successfully identify, consummate, and integrate acquisitions; our ability to achieve acquisition synergies; our continued ability to access credit markets on satisfactory terms; significant fluctuations in interest rates; increases in energy costs and other operating expenses eroding planned cost savings; higher than expected implementation costs of the SAP system; conversion problems related to the SAP system that disrupt our business and negatively impact customer relationships; the impact of tightened credit markets on our customers; the impact of changes in tax and fiscal policies and laws; the potential for increased expenditures relating to compliance with environmental regulatory initiatives; the impact of new environmental, healthcare, tax, accounting, and other regulation; continued potential liability under the Multiemployer Pension Plan Amendments Act of 1980 with respect to our participation in or withdrawal from multi-employer pension plans for our union employees; the extent and duration of current recessionary trends in the U.S. economy; the effect of catastrophic events; political and economic uncertainties associated with current world events; and other factors described in Airgas reports, including its March 31, 2009 Form 10-K, subsequent Forms 10-Q, and other documents filed by Airgas with the SEC.
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ITEM 9. | EXHIBITS |
The following Exhibits are filed herewith or incorporated herein by reference:
Exhibit Number |
Description | |
(a)(1) | Press release issued by Airgas, dated February 22, 2010. | |
(a)(2) | Letter to stockholders of Airgas, dated February 22, 2010. | |
(a)(3) | Letter to employees of Airgas, dated February 22, 2010. | |
(a)(4) | Employee FAQ, dated February 22, 2010. | |
(a)(5) | Letter to customers of Airgas, dated February 22, 2010. | |
(a)(6) | Updated Presentation, dated February 22, 2010. | |
(a)(7) | Letter from Mr. John McGlade to Mr. Peter McCausland, dated November 20, 2009. | |
(a)(8) | Letter from Mr. John McGlade to Mr. Peter McCausland, dated December 17, 2009. | |
(a)(9) | Letter from Mr. John McGlade to Mr. Peter McCausland, dated February 4, 2010. | |
(e)(1) | Excerpts from the Airgas Definitive Proxy Statement on Schedule 14A relating to the 2009 Annual Meeting of Stockholders as filed with the SEC on July 13, 2009. | |
(e)(2) | 1997 Stock Option Plan, as amended through May 7, 2002, and approved by the Companys stockholders on July 31, 2002. (Incorporated by reference to Exhibit 10.1 to the Companys June 30, 2002 Quarterly Report on Form 10-Q) | |
(e)(3) | 1997 Directors Stock Option Plan, as amended on May 25, 2004, and approved by the Companys stockholders on August 4, 2004. (Incorporated by reference to the Definitive Proxy Statement on Form DEF14A dated June 28, 2004) | |
(e)(4) | Amended and Restated 2006 Equity Incentive Plan, dated June 21, 2006, as amended through June 2009 and approved by the Companys stockholders on August 18, 2009. (Incorporated by reference to Exhibit 10.1 to the Companys August 20, 2009 Current Report on Form 8-K) | |
(e)(5) | Amended and restated Change of Control Agreement between Airgas, Inc. and Michael L. Molinini, dated December 31, 2008 (Incorporated by reference to Exhibit 10.1 to Airgas January 7, 2009 Current Report on Form 8-K). Seven other executive officers and one additional officer are parties to substantively identical agreements. | |
(e)(6) | Amended and Restated Executive Severance Agreement between Airgas, Inc. and Peter McCausland, dated May 29, 2009. (Incorporated by reference to Exhibit 10.12 to Airgas Annual Report on Form 10-K for the fiscal year ended March 31, 2009) |
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.
AIRGAS, INC. | ||
By: | /s/ Peter McCausland | |
Name: Peter McCausland | ||
Title: Chairman and Chief Executive Officer |
Dated: February 22, 2010
EXHIBIT INDEX
Exhibit |
Description | |
(a)(1) | Press release issued by Airgas, dated February 22, 2010. | |
(a)(2) | Letter to stockholders of Airgas, dated February 22, 2010. | |
(a)(3) | Letter to employees of Airgas, dated February 22, 2010. | |
(a)(4) | Employee FAQ, dated February 22, 2010. | |
(a)(5) | Letter to customers of Airgas, dated February 22, 2010. | |
(a)(6) | Updated Presentation, dated February 22, 2010. | |
(a)(7) | Letter from Mr. John McGlade to Mr. Peter McCausland, dated November 20, 2009. | |
(a)(8) | Letter from Mr. John McGlade to Mr. Peter McCausland, dated December 17, 2009. | |
(a)(9) | Letter from Mr. John McGlade to Mr. Peter McCausland, dated February 4, 2010. | |
(e)(1) | Excerpts from the Airgas Definitive Proxy Statement on Schedule 14A relating to the 2009 Annual Meeting of Stockholders as filed with the SEC on July 13, 2009. | |
(e)(2) | 1997 Stock Option Plan, as amended through May 7, 2002, and approved by the Companys stockholders on July 31, 2002. (Incorporated by reference to Exhibit 10.1 to the Companys June 30, 2002 Quarterly Report on Form 10-Q) | |
(e)(3) | 1997 Directors Stock Option Plan, as amended on May 25, 2004, and approved by the Companys stockholders on August 4, 2004. (Incorporated by reference to the Definitive Proxy Statement on Form DEF14A dated June 28, 2004) | |
(e)(4) | Amended and Restated 2006 Equity Incentive Plan, dated June 21, 2006, as amended through June 2009 and approved by the Companys stockholders on August 18, 2009. (Incorporated by reference to Exhibit 10.1 to the Companys August 20, 2009 Current Report on Form 8-K) | |
(e)(5) | Amended and restated Change of Control Agreement between Airgas, Inc. and Michael L. Molinini, dated December 31, 2008 (Incorporated by reference to Exhibit 10.1 to Airgas January 7, 2009 Current Report on Form 8-K). Seven other executive officers and one additional officer are parties to substantively identical agreements. | |
(e)(6) | Amended and Restated Executive Severance Agreement between Airgas, Inc. and Peter McCausland, dated May 29, 2009. (Incorporated by reference to Exhibit 10.12 to Airgas Annual Report on Form 10-K for the fiscal year ended March 31, 2009) |
ANNEX A
Conditions to the Offer
The Schedule TO provides that Air Products is not required to accept for payment or, subject to applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the Exchange Act) (relating to AP Subs obligation to pay for or return tendered Airgas Common Shares promptly after termination or expiration of the Offer), pay for any Airgas Common Shares, and may terminate or amend the Offer if, before the Offer expires, the following conditions shall not have been satisfied:
| The Minimum Tender Condition there being validly tendered and not withdrawn before the expiration of the Offer a number of Airgas Common Shares which, together with the shares then owned by Air Products and its subsidiaries, represents at least a majority of the total number of Airgas Common Shares outstanding on a fully diluted basis, |
| The Rights Plan Condition the Airgas Board redeeming the Rights or Air Products being satisfied, in its sole discretion, that the Rights have been invalidated or are otherwise inapplicable to the Offer and the Second-Step Merger, |
| The Section 203 Condition the Airgas Board having approved the Offer and the Second-Step Merger under Section 203 (Section 203) of the DGCL or Air Products being satisfied, in its sole discretion, that Section 203 is inapplicable to the Offer and the Second-Step Merger, |
| The Certificate Condition the Airgas Board having approved the Offer and the Second-Step Merger under Article 6 of Airgas Amended and Restated Certificate of Incorporation (the Airgas Certificate) or Air Products being satisfied, in its sole discretion, that Article 6 of the Airgas Certificate is inapplicable to the Offer and the Second-Step Merger, |
| The HSR Condition the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), applicable to the purchase of shares under the Offer having expired or been terminated as described in the Schedule TO, and |
| The Impairment Condition Airgas not having entered into or effectuated any agreement or transaction with any person or entity having the effect of impairing AP Subs or Air Products ability to acquire Airgas or otherwise diminishing the expected value to Air Products of the acquisition of Airgas. |
In addition, Air Products is not required to accept for payment or, subject to applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, pay for any Airgas Common Shares, and may terminate or amend the Offer, if at any time on or after the date of the Offer, and before the time of payment for Airgas Common Shares (whether or not any Airgas Common Shares have theretofore been accepted for payment pursuant to the Offer), any of the following conditions exist:
| there is threatened, instituted or pending any action or proceeding by any government, governmental authority or agency or any other person, domestic, foreign or supranational, before any court or governmental authority or agency, domestic, foreign or supranational, |
| challenging or seeking to, or which is reasonably likely to, make illegal, delay or otherwise, directly or indirectly, restrain or prohibit the making of the Offer, the acceptance for payment of or payment for some or all of the Airgas Common Shares by Air Products or any of its subsidiaries or affiliates or the consummation by Air Products or any of its subsidiaries or affiliates of a merger or other similar business combination involving Airgas, |
A-1
| seeking to obtain material damages in connection with, or otherwise directly or indirectly relating to, the transactions contemplated by the Offer or any such merger or other similar business combination, |
| seeking to restrain or prohibit the exercise of Air Products full rights of ownership or operation by Air Products or any of its subsidiaries or affiliates of all or any portion of Air Products business or assets or those of Airgas or any of Air Products or Airgas respective subsidiaries or affiliates or to compel Air Products or any of its subsidiaries or affiliates to dispose of or hold separate all or any portion of Air Products business or assets or those of Airgas or any of Air Products or Airgas respective subsidiaries or affiliates or seeking to impose any limitation on Air Products or any of its subsidiaries or affiliates ability to conduct such businesses or own such assets, |
| seeking to impose or confirm limitations on Air Products ability or that of any of its subsidiaries or affiliates effectively to exercise full rights of ownership of the Airgas Common Shares, including the right to vote any Airgas Common Shares acquired or owned by Air Products or any of its subsidiaries or affiliates on all matters properly presented to Airgas stockholders, |
| seeking to require divestiture by Air Products or any of its subsidiaries or affiliates of any Airgas Common Shares, |
| seeking any material diminution in the benefits expected to be derived by Air Products or any of its subsidiaries or affiliates as a result of the transactions contemplated by the Offer or any merger or other business combination involving Airgas, |
| adversely affecting the financing of the Offer or any merger or other business combination involving Airgas or |
| that otherwise, in Air Products reasonable judgment, has or may have material adverse significance with respect to either the value of Airgas or any of its subsidiaries or affiliates or the value of the Airgas Common Shares to Air Products or any of its subsidiaries or affiliates; or |
| any action is taken, or any statute, rule, regulation, interpretation, judgment, injunction, order or decree is proposed, enacted, enforced, promulgated, amended, issued or deemed applicable to Air Products, AP Sub or any of their subsidiaries or affiliates, the Offer, the acceptance for payment of or payment for Airgas Common Shares, or any merger or other business combination involving Airgas, by any court, government or governmental authority or agency, domestic, foreign or supranational (other than the application of the waiting period provisions of the HSR Act to the Offer or to any such merger or other business combination), that, in Air Products reasonable judgment, does or may, directly or indirectly, result in any of the consequences referred to in any of the sub-bullets of the bullet point immediately above; or |
| any change occurs or is threatened (or any development occurs or is threatened involving a prospective change) in the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of Airgas or any of its affiliates that, in Air Products reasonable judgment, is or may be materially adverse to Airgas or any of its affiliates, or Air Products becomes aware of any facts that, in its reasonable judgment, have or may have material adverse significance with respect to either the value of Airgas or any of its affiliates or the value of the Shares to Air Products or any of its affiliates; or |
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| there occurs |
| any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market, |
| any decline in either the Dow Jones Industrial Average, the Standard and Poors Index of 500 Industrial Companies or the NASDAQ-100 Index by an amount in excess of 15%, measured from the close of business on February 4, 2010, |
| any change in the general political, market, economic or financial conditions in the United States or abroad that, in Air Products reasonable judgment, could have a material adverse effect on the business, assets, liabilities, financial condition, capitalization, operations, results of operations or prospects of Airgas and its subsidiaries, taken as a whole, |
| the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, |
| any material adverse change (or development or threatened development involving a prospective material adverse change) in United States dollars or any other currency exchange rates or a suspension of, or a limitation on, the markets therefor, |
| the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States or any attack on, outbreak or act of terrorism involving the United States, |
| any limitation (whether or not mandatory) by any governmental authority or agency on, or any other event that, in Air Products reasonable judgment, may adversely affect, the extension of credit by banks or other financial institutions or |
| in the case of any of the foregoing existing as of the close of business on February 4, 2010, a material acceleration or worsening thereof; or |
| if any of the following occurs |
| a tender or exchange offer for some or all of the Airgas Common Shares has been publicly proposed to be made or has been made by another person (including Airgas or any of its subsidiaries or affiliates), or has been publicly disclosed, or Air Products otherwise learns that any person or group (as defined in Section 13(d)(3) of the Exchange Act) has acquired or proposes to acquire beneficial ownership of more than 5% of any class or series of capital stock of Airgas (including the Airgas Common Shares), through the acquisition of stock, the formation of a group or otherwise, or is granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than 5% of any class or series of capital stock of Airgas (including the Airgas Common Shares) other than acquisitions for bona fide arbitrage purposes only and other than as disclosed in a Schedule 13D or 13G on file with the SEC on February 4, 2010, |
| any such person or group which, prior to February 4, 2010, had filed such a Schedule with the SEC has acquired or proposes to acquire beneficial ownership of additional shares of any class or series of capital stock of Airgas, through the acquisition of stock, the formation of a group or otherwise, constituting 1% or more of any such class or series, or is granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of additional shares of any class or series of capital stock of Airgas constituting 1% or more of any such class or series, |
| any person or group has entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender or exchange offer or a merger, consolidation or other business combination with or involving Airgas or |
A-3
| any person has filed a Notification and Report Form under the HSR Act or made a public announcement reflecting an intent to acquire Airgas or any assets or securities of Airgas; or |
| Airgas or any of its subsidiaries has |
| split, combined or otherwise changed, or authorized or proposed the split, combination or other change of, the Airgas Common Shares or its capitalization, |
| acquired or otherwise caused a reduction in the number of, or authorized or proposed the acquisition or other reduction in the number of, outstanding Airgas Common Shares or other securities, |
| issued or sold, or authorized or proposed the issuance or sale of, any additional Airgas Common Shares, shares of any other class or series of capital stock, other voting securities or any securities convertible into, or options, rights or warrants, conditional or otherwise, to acquire, any of the foregoing (other than the issuance of Shares pursuant to and in accordance with the terms in effect on December 31, 2009, of employee stock options outstanding prior to such date), or any other securities or rights in respect of, in lieu of, or in substitution or exchange for any shares of its capital stock, |
| permitted the issuance or sale of any shares of any class of capital stock or other securities of any subsidiary of Airgas, |
| declared, paid or proposed to declare or pay any dividend or other distribution on any shares of capital stock of Airgas (other than a distribution of the Rights certificates or a redemption of the Rights in accordance with the Rights Agreement as publicly disclosed to be in effect prior to the date of the Offer), |
| altered or proposed to alter any material term of any outstanding security, issued or sold, or authorized or proposed the issuance or sale of, any debt securities or otherwise incurred or authorized or proposed the incurrence of any debt other than in the ordinary course of business (other than to amend the Rights Agreement to make the Rights inapplicable to the Offer and the Second-Step Merger described herein), |
| authorized, recommended, proposed or announced its intent to enter into or entered into an agreement with respect to or effected any merger, consolidation, liquidation, dissolution, business combination, acquisition of assets, disposition of assets or relinquishment of any material contract or other right of Airgas or any of its subsidiaries or any comparable event not in the ordinary course of business, |
| authorized, recommended, proposed or announced its intent to enter into or entered into any agreement or arrangement with any person or group that, in Air Products reasonable judgment, has or may have material adverse significance with respect to either the value of Airgas or any of its subsidiaries or affiliates or the value of the Airgas Common Shares to Air Products or any of its subsidiaries or affiliates, |
| adopted, entered into or amended any employment, severance, change of control, retention or other similar agreement, arrangement or plan with or for the benefit of any of its officers, directors, employees or consultants or made grants or awards thereunder, in each case other than in the ordinary course of business or adopted, entered into or amended any such agreements, arrangements or plans so as to provide for increased benefits to officers, directors, employees or consultants as a result of or in connection with the making of the Offer, the acceptance for |
A-4
payment of or payment for some of or all the Airgas Common Shares by Air Products or Air Products consummation of any merger or other similar business combination involving Airgas (including, in each case, in combination with any other event such as termination of employment or service), |
| except as may be required by law, taken any action to terminate or amend or materially increase liability under any employee benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974) of Airgas or any of its subsidiaries, or Air Products shall have become aware of any such action which was not previously announced, |
| transferred into escrow (or other similar arrangement) any amounts required to fund any existing benefit, employment, severance, change of control or other similar agreement, in each case other than in the ordinary course of business, or |
| amended, or authorized or proposed any amendment to, its certificate of incorporation or bylaws (or other similar constituent documents) or Air Products becomes aware that Airgas or any of its subsidiaries shall have amended, or authorized or proposed any amendment to, the Airgas Certificate or bylaws (or other similar constituent documents) which has not been previously disclosed (in each case, other than to amend the Rights Agreement to make the Rights inapplicable to the Offer and the proposed second-step merger described herein); or |
| Air Products becomes aware |
| that any material contractual right of Airgas or any of its subsidiaries has been impaired or otherwise adversely affected or that any material amount of indebtedness of Airgas or any of its subsidiaries has been accelerated or has otherwise become due or become subject to acceleration prior to its stated due date, in each case with or without notice or the lapse of time or both, as a result of or in connection with the Offer or the consummation by Air Products or any of its subsidiaries or affiliates of a merger or other similar business combination involving Airgas or |
| of any covenant, term or condition in any instrument or agreement of Airgas or any of its subsidiaries that, in Air Products reasonable judgment, has or may have material adverse significance with respect to either the value of Airgas or any of its affiliates or the value of the Shares to Air Products or any of its affiliates (including any event of default that may ensue as a result of or in connection with the Offer, the acceptance for payment of or payment for some or all of the Airgas Common Shares by Air Products or Air Products consummation of a merger or other similar business combination involving Airgas); or |
| Air Products or any of its affiliates enters into a definitive agreement or announces an agreement in principle with Airgas providing for a merger or other similar business combination with Airgas or any of its subsidiaries or the purchase of securities or assets of Airgas or any of its subsidiaries, or Air Products and Airgas reach any other agreement or understanding pursuant to which it is agreed that the Offer will be terminated; |
| Airgas or any of its subsidiaries shall have |
| granted to any person proposing a merger or other business combination with or involving Airgas or any of its subsidiaries or the purchase of securities or assets of Airgas or any of its subsidiaries any type of option, warrant or right which, in Air Products reasonable judgment, constitutes a lock-up device (including a right to acquire or receive any Airgas Common Shares or other securities, assets or business of Airgas or any of its subsidiaries) or |
| paid or agreed to pay any cash or other consideration to any party in connection with or in any way related to any such business combination or purchase; or |
A-5
| any required approval, permit, authorization, extension, action or non-action, waiver or consent of any governmental authority or agency (including the other matters described or referred to in The Offer Section 15 Certain Legal Matters; Regulatory Approvals) shall not have been obtained on terms satisfactory to Air Products and AP Sub or any waiting period or extension thereof imposed by any government or governmental authority or agency with respect to the Offer shall not have expired. |
The Schedule TO states that the foregoing conditions are for the sole benefit of Air Products, AP Sub and their affiliates and may be asserted by Air Products or AP Sub in their sole discretion regardless of the circumstances giving rise to any such conditions or may be waived by them in their sole discretion in whole or in part at any time or from time to time before the Offer expires, that Air Products expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer, that Air Products failure at any time to exercise its rights under any of the foregoing conditions shall not be deemed a waiver of any such right, that the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstance, and that each such right shall be deemed an ongoing right which may be asserted at any time or from time to time.
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ANNEX B
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February 20, 2010
The Board of Directors
Airgas, Inc.
259 North Radnor-Chester Road
Suite 100
Radnor, Pennsylvania 19087-5283
Members of the Board of Directors:
On February 11, 2010, Air Products Distribution, Inc. (Purchaser), a wholly owned subsidiary of Air Products and Chemicals, Inc. (Air Products), commenced an offer to purchase all of the outstanding shares of common stock, par value $0.01 per share (the Company Common Stock), of Airgas, Inc. (the Company) at a purchase price of $60.00 per Share in cash (the Consideration), upon the terms and subject to the conditions set forth in the Offer to Purchase dated February 11, 2010 (the Offer to Purchase), and in the related Letter of Transmittal (which, together with the Offer to Purchase, collectively constitute the Offer). The terms and conditions of the Offer are described in the Schedule TO filed by Purchaser and Air Products with the Securities and Exchange Commission on February 11, 2010 (the Schedule TO). We note that the Offer to Purchase provides that, following consummation of the Offer, Purchaser intends to consummate a merger with the Company (the Merger and, together with the Offer, the Transactions) in which all remaining public stockholders of the Company would receive the highest price paid per Share pursuant to the Offer, without interest.
You have requested our opinion as to the adequacy, from a financial point of view, to the holders of Company Common Stock of the Consideration offered to such holders (other than Purchaser and any of its affiliates) in the Offer.
In connection with this opinion, we have, among other things:
(1) | reviewed the terms and conditions of the Offer as set forth in the Schedule TO and the exhibits thereto; |
(2) | reviewed the Solicitation/Recommendation Statement of the Company to be filed on Schedule 14D-9, in the form approved by you on the date of this opinion; |
(3) | reviewed certain publicly available business and financial information relating to the Company and Air Products; |
(4) | reviewed certain internal financial and operating information with respect to the business, operations and prospects of the Company furnished to or discussed with us by the management of the Company, including certain financial forecasts relating to the Company prepared by the management of the Company (such forecasts, the Company Forecasts); |
(5) | discussed the past and current business, operations, financial condition and prospects of the Company with members of senior management of the Company; |
(6) | discussed with members of senior management of the Company their assessment of the strategic rationale of Air Products for, and the potential benefits for Air Products of, the Transactions; |
(7) | reviewed the trading history for the Company Common Stock and a comparison of that trading history with the trading histories of other companies we deemed relevant; |
(8) | compared certain financial and stock market information of the Company and Air Products with similar information of other companies we deemed relevant; |
The Board of Directors
Airgas, Inc.
Page 2
(9) | compared certain financial terms of the Offer to financial terms, to the extent publicly available, of other transactions we deemed relevant; and |
(10) | performed such other analyses and studies and considered such other information and factors as we deemed appropriate. |
In arriving at our opinion, we have assumed and relied upon, without independent verification, the accuracy and completeness of the financial and other information and data publicly available or provided to or otherwise reviewed by or discussed with us and have relied upon the assurances of the management of the Company that they are not aware of any facts or circumstances that would make such information or data inaccurate or misleading in any material respect. With respect to the Company Forecasts, we have been advised by the Company, and have assumed, that they have been reasonably prepared on a basis reflecting the best currently available estimates and good faith judgments of the management of the Company as to the future financial performance of the Company. We have not made or been provided with any independent evaluation or appraisal of the assets or liabilities (contingent or otherwise) of the Company, nor have we made any physical inspection of the properties or assets of the Company.
We express no view or opinion as to any terms or other aspects of the Transactions (other than the Consideration to be paid in the Offer, to the extent expressly specified herein), including, without limitation, the form or structure of the Transactions. Our opinion is limited to the adequacy, from a financial point of view, to the holders of Company Common Stock of the Consideration offered to such holders (other than Purchaser and any of its affiliates) in the Offer and no opinion or view is expressed with respect to any consideration to be received in connection with the Transactions by the holders of any other class of securities, creditors or other constituencies of any party. In addition, no opinion or view is expressed with respect to the fairness (financial or otherwise) of the Consideration to be paid in the Transactions or the amount, nature or any other aspect of any compensation to any of the officers, directors or employees of the Company or Air Products, or class of such persons, relative to the Consideration. Furthermore, no opinion or view is expressed as to the relative merits of the Transactions in comparison to other strategies or transactions that might be available to the Company or in which the Company might engage. We are not expressing any opinion as to the prices at which the Company Common Stock will trade at any time. In addition, we express no opinion or recommendation as to whether any holder of shares of Company Common Stock should tender such shares in connection with the Offer or any related matter.
We have acted as financial advisor to the Company in connection with its consideration of the Offer and other matters pursuant to our engagement by the Company. We expect to receive fees for our services in connection with our engagement, including advisory fees that will be payable whether or not the Offer is consummated. In addition, the Company has agreed to reimburse our expenses and indemnify us against certain liabilities arising out of our engagement.
We and our affiliates comprise a full service securities firm and commercial bank engaged in securities, commodities and derivatives trading, foreign exchange and other brokerage activities, and principal investing as well as providing investment, corporate and private banking, asset and investment management, financing and financial advisory services and other commercial services and products to a wide range of companies, governments and individuals. In the ordinary course of our businesses, we and our affiliates may invest on a principal basis or on behalf of customers or manage funds that invest, make or hold long or short positions, finance positions or trade or otherwise effect transactions in equity, debt or other securities or financial instruments (including derivatives, bank loans or other obligations) of the Company, Air Products and certain of their respective affiliates.
The Board of Directors
Airgas, Inc.
Page 3
We and our affiliates in the past have provided, currently are providing, and/or in the future may provide, investment banking, commercial banking and other financial services to the Company and to Air Products and have received or in the future may receive compensation for the rendering of these services, including (i) having acted as joint-bookrunner in connection with the Companys $400 million senior note offering completed in September 2009, (ii) having acted as joint-bookrunner in connection with the Companys $400 million senior subordinated note offering in June 2008, (iii) providing treasury and trade products and services to the Company and (iv) providing commercial banking services to the Company and to the Purchaser, including acting as a lender under certain credit facilities to each of the Company and the Purchaser.
It is understood that this letter is for the benefit and use of the Board of Directors of the Company in connection with and for purposes of its evaluation of the Offer.
Our opinion is necessarily based on financial, economic, monetary, market and other conditions and circumstances as in effect on, and the information made available to us as of, the date hereof. It should be understood that subsequent developments may affect this opinion, and we do not have any obligation to update, revise, or reaffirm this opinion. The issuance of this opinion was approved by our Americas Fairness Opinion Review Committee.
Based upon and subject to the foregoing, including the various assumptions and limitations set forth herein, we are of the opinion on the date hereof that the Consideration offered to the holders of Company Common Stock (other than Purchaser and any of its affiliates) pursuant to the Offer is inadequate from a financial point of view to such holders.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
ANNEX C
Goldman, Sachs & Co. | 85 Broad Street | New York, New York 10004 Tel: 212-902-1000 | Fax: 212-357-5505 |
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PERSONAL AND CONFIDENTIAL
February 20, 2010
Board of Directors
Airgas, Inc.
259 North Radnor-Chester Road
Suite 100
Radnor, Pennsylvania 19087-5283
Ladies and Gentlemen:
You have requested our opinion as to the adequacy from a financial point of view to the holders (other than the Offeror (as defined below) and any of its affiliates) of the outstanding shares of common stock, par value $0.01 per share (the Shares), of Airgas, Inc. (the Company), of the $60.00 per Share in cash (the Consideration) proposed to be paid to such holders in the Offer (as defined below). The terms of the offer to purchase (the Offer to Purchase) and related letter of transmittal (which, together with the Offer to Purchase, constitutes the Offer) contained in the Tender Offer Statement on Schedule TO filed by Air Products and Chemicals, Inc. (Parent) and Air Products Distribution, Inc., a wholly owned subsidiary of Parent (the Offeror), with the Securities and Exchange Commission on February 11, 2010 (the Schedule TO), provide for an offer for all of the Shares pursuant to which, subject to the satisfaction of certain conditions set forth in the Offer, the Offeror will pay the Consideration for each Share accepted. We note that the Offer to Purchase provides that, following consummation of the Offer, the Offeror intends to consummate a merger with the Company (the Merger and, together with the Offer, the Transactions) in which all remaining public stockholders of the Company would receive the highest price paid per Share pursuant to the Offer, without interest.
Goldman, Sachs & Co. and its affiliates are engaged in investment banking and financial advisory services, commercial banking, securities trading, investment management, principal investment, financial planning, benefits counseling, risk management, hedging, financing, brokerage activities and other financial and non-financial activities and services for various persons and entities. In the ordinary course of these activities and services, Goldman, Sachs & Co. and its affiliates may at any time make or hold long or short positions and investments, as well as actively trade or effect transactions, in the equity, debt and other securities (or related derivative securities) and financial instruments (including bank loans and other obligations) of third parties, the Company, Parent and any of their respective affiliates or any currency or commodity that may be involved in the Transactions for their own account and for the accounts of their customers. We are acting as financial advisor to the Company in connection with its consideration of the Offer and other matters pursuant to our engagement by the Company. We expect to receive fees for our services in connection with our engagement, including advisory fees that will be payable whether or not the Offer is consummated. The Company has agreed to reimburse our expenses arising, and indemnify us against certain liabilities that may arise, out of our engagement. In addition, we have provided, and are currently providing, certain investment
Board of Directors
Airgas, Inc.
February 20, 2010
Page Two
banking and other financial services to the Company and its affiliates, including having acted as a participant in the Companys senior secured credit facility (aggregate commitment $45,700,000) since July 2006; as joint bookrunner with respect to an offering of the Companys 7.125% Senior Subordinated Notes due October 2018 (aggregate principal amount $400,000,000) in June 2008; and as lead manager with respect to a public offering of the Companys 4.5% Senior Notes due September 2014 (aggregate principal amount $400,000,000) in September 2009. We also have provided certain investment banking and other financial services to Parent and its affiliates, including having acted as joint bookrunner with respect to a public offering of Parents 4.15% Senior Notes due 2013 (aggregate principal amount $300,000,000) in February 2008; as Parents financial advisor in connection with the sale of its interest in its vinyl acetate ethylene polymers joint ventures in January 2008; as Parents financial advisor in connection with its sale of certain non-pressure emulsions businesses and related production facilities in July 2008; as Parents financial advisor in connection with the sale of more than half of its remaining U.S. healthcare business in the third quarter of 2009; and as senior manager or sole bookrunner in connection with numerous municipal financing transactions by Parent and its subsidiaries. We also may provide investment banking and other financial services to the Company, Parent and their respective affiliates in the future. In connection with the above-described services we have received, and may receive, compensation.
In connection with this opinion, we have reviewed, among other things, the Schedule TO, including the Offer to Purchase and related letter of transmittal contained therein; the Solicitation/Recommendation Statement of the Company to be filed on Schedule 14D-9, in the form approved by you on the date of this opinion; annual reports to stockholders and Annual Reports on Form 10-K of the Company and Parent for the five fiscal years ended March 31, 2009 and September 30, 2009, respectively; certain interim reports to stockholders and Quarterly Reports on Form 10-Q of the Company and Parent; certain other communications from the Company and Parent to their respective stockholders; certain publicly available research analyst reports for the Company and Parent; and certain internal financial analyses and forecasts for the Company prepared by its management and approved for our use by the Company (the Forecasts). We also have held discussions with members of the senior management of the Company regarding their assessment of the strategic rationale of Parent for, and the potential benefits for Parent of, the Transactions and the past and current business operations, financial condition and future prospects of the Company. In addition, we have reviewed the reported price and trading activity for the Shares, compared certain financial and stock market information for the Company and Parent with similar information for certain other companies the securities of which are publicly traded, reviewed the financial terms of certain recent business combinations in the industrial gas industry specifically and in other industries generally and performed such other studies and analyses, and considered such other factors, as we considered appropriate.
For purposes of rendering this opinion, we have relied upon and assumed, without assuming any responsibility for independent verification, the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by us, and we do not assume any responsibility for any such information. In that regard, we have assumed with your consent that the Forecasts have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company. In addition, we have not made an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or off-balance-sheet assets and liabilities) of the Company, Parent or any of their respective subsidiaries and we have not been furnished with any such evaluation or appraisal. Our opinion does not address any legal, regulatory, tax or accounting matters.
Board of Directors
Airgas, Inc.
February 20, 2010
Page Three
Our opinion does not address the relative merits of the Transactions as compared to any strategic alternatives that may be available to the Company. This opinion addresses only the adequacy from a financial point of view, as of the date hereof, of the Consideration proposed to be paid to the holders of Shares (other than the Offeror and any of its affiliates) pursuant to the Offer. We do not express any view on, and our opinion does not address, the fairness, from a financial point of view, of the Consideration or any other term or aspect of the Transactions. In addition, we do not express any view on, and our opinion does not address, the adequacy or fairness of the Consideration or any other term or aspect of the Transactions to, or any consideration received in connection therewith by, Offeror and any of its affiliates, the holders of any other class of securities, creditors, or other constituencies of the Company; nor as to the adequacy or fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of the Company, or class of such persons in connection with the Transactions, whether relative to the Consideration proposed to be paid to the holders of Shares pursuant to the Offer or otherwise. We are not expressing any opinion as to the prices at which the Shares will trade at any time. Our opinion is necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to us as of, the date hereof and we assume no responsibility for updating, revising or reaffirming this opinion based on circumstances, developments or events occurring after the date hereof. Our advisory services and the opinion expressed herein are provided for the information and assistance of the Board of Directors of the Company in connection with its consideration of the Offer and such opinion does not constitute a recommendation as to whether or not any holder of Shares should tender such Shares in connection with the Offer or any other matter. This opinion has been approved by a fairness committee of Goldman, Sachs & Co.
Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Consideration proposed to be paid to the holders of Shares (other than the Offeror and any of its affiliates) pursuant to the Offer is inadequate from a financial point of view to such holders.
Very truly yours,
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(GOLDMAN, SACHS & CO.) |
Exhibit (a)(1)
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Airgas, Inc. | |
259 N. Radnor-Chester Road | ||
Suite 100 | ||
Radnor, PA 19087-5283 | ||
www.airgas.com |
Media Contact: | Investor Contact: | |||
Jay Worley jay.worley@airgas.com (610) 902-6206 |
Joele Frank / Andrew Siegel / Jim Golden Joele Frank, Wilkinson Brimmer Katcher (212) 355-4449 | Barry Strzelec barry.strzelec@airgas.com (610) 902-6256 |
For release: Immediately
AIRGAS BOARD OF DIRECTORS REJECTS AIR PRODUCTS HOSTILE TENDER OFFER
Air Products Offer Grossly Undervalues Airgas
Board Strongly Urges Stockholders Not to Tender Shares into Air Products Offer
RADNOR, PA February 22, 2010 Airgas, Inc. (NYSE: ARG) today announced that its Board of Directors, after careful consideration with its independent financial and legal advisors, voted unanimously to reject the unsolicited tender offer from Air Products & Chemicals, Inc. (NYSE: APD) (Air Products) to acquire all outstanding common shares of Airgas at a price of $60.00 per share in cash. The Board unanimously recommends that Airgas stockholders not tender their shares into Air Products offer.
The Board noted that the value offered by Air Products is unchanged from the unsolicited proposal Air Products made on February 4, 2010, which the Board thoroughly considered and rejected on February 9, 2010. The basis for the Boards recommendation with respect to the Air Products tender offer is set forth in Airgas Schedule 14D-9 filed today with the Securities and Exchange Commission (SEC).
The Airgas Board of Directors is unanimous in its belief that the Air Products offer significantly undervalues Airgas and fails to reflect the value of our industry leading position and future growth prospects, said Airgas Chairman and CEO Peter McCausland. Since our IPO in 1986, Airgas has employed a disciplined approach to steadily growing revenue,
EBITDA and shareholders equity, and Airgas stock has achieved total shareholder return over that period of more than seven times the return of the S&P 500 index. The Airgas Board strongly urges stockholders to reject Air Products offer and not tender their shares.
The reasons for the Airgas Boards recommendation to reject Air Products offer, which the Company detailed in its 14D-9 filing, include:
| The offer grossly undervalues Airgas. The offer does not reflect the value inherent in Airgas future prospects, its extraordinary track record in creating stockholder value over its nearly 30-year history and its position as the largest and most valuable packaged gas business in the world. The Airgas Board is confident that Airgas will, consistent with its history, deliver greater value to its stockholders by executing its strategic plan than would be obtained under the offer. |
| The offer and its timing are extremely opportunistic. Air Products is trying to obtain the future value of Airgas at a bargain basement price. Airgas and its stockholders are poised to realize significant benefits as the economy emerges from a deep recession, making this precisely the wrong time to sell Airgas. |
| The offer is highly uncertain and any payments made to Airgas stockholders would be considerably deferred. We believe the offer is highly likely to be subject to substantial delays related to U.S. antitrust clearance. Air Products failure to commit to make the necessary divestitures and its failure to obtain antitrust clearance in its last attempt to acquire a major U.S. gas company heighten the concern over regulatory risk and delay. |
| The offers extraordinarily broad conditions render it illusory. The numerous conditions of the offer, many of which may be asserted by Air Products in its sole discretion and have low thresholds of materiality, create significant uncertainty and risk as to whether the offer can be completed and the timing for completion. |
| Air Products has employed highly aggressive tactics including deceptive statements, meritless litigation and misleading personal attacks designed to direct attention away from the grossly undervalued and opportunistic nature of its offer. These tactics underscore the marked difference between the cultures of the two companies and the challenges Air Products would face in integrating Airgas operations and meeting the needs of its loyal customers. |
| Air Products acquisition of Airgas will likely reduce value. Air Products has a poor acquisition track record, little experience relevant to Airgas business and a synergy plan that demonstrates its fundamental misunderstanding of our business. This is particularly concerning if Air Products again revises its offer to include stock. |
We believe that, in an effort to distract Airgas stockholders from the grossly undervalued and highly opportunistic nature of its offer, Air Products has resorted to personal attacks and deceptive statements, concluded McCausland. Our Board of Directors and management team remain focused on the execution of our business strategies to deliver superior value to Airgas stockholders, and we will not allow the tactics employed by Air Products and its advisors to deter us from achieving our objectives.
The Board also took action under Airgas shareholder rights plan to defer the distribution of rights that would otherwise occur ten business days after the announcement of the offer, which action is further described in Airgas 14D-9.
The Companys 14D-9 filing is available on the SECs website, www.sec.gov. In addition, the 14D-9 filing, this press release and other materials related to Air Products Unsolicited Proposals are available in the Investor Information section of the Companys website at www.airgas.com, or through the following web address: http://investor.shareholder.com/arg/airgascontent.cfm.
Bank of America Merrill Lynch and Goldman, Sachs & Co. are serving as financial advisors, and Wachtell, Lipton, Rosen & Katz is serving as legal counsel to Airgas and its Board of Directors.
About Airgas, Inc.
Airgas, Inc. (NYSE: ARG), through its subsidiaries, is the largest U.S. distributor of industrial, medical, and specialty gases, and hardgoods, such as welding equipment and supplies. Airgas is also one of the largest U.S. distributors of safety products, the largest U.S. producer of nitrous oxide and dry ice, the largest liquid carbon dioxide producer in the Southeast, and a leading distributor of process chemicals, refrigerants, and ammonia products. More than 14,000 employees work in over 1,100 locations, including branches, retail stores, gas fill plants, specialty gas labs, production facilities and distribution centers. Airgas also distributes its products and services through eBusiness, catalog and telesales channels. Its national scale and strong local presence offer a competitive edge to its diversified customer base. For more information, please visit www.airgas.com.
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ADDITIONAL INFORMATION
This communication does not constitute an offer to buy or solicitation of an offer to sell any securities. In response to the tender offer commenced by Air Products Distribution, Inc., a wholly owned subsidiary of Air Products and Chemicals, Inc., Airgas has filed a solicitation/recommendation statement on Schedule 14D-9 with the U.S. Securities and Exchange Commission (SEC). INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of these documents and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov. Also, materials related to Air Products Unsolicited Proposals are available in the Investor Information section of the Companys website at www.airgas.com, or through the following web address: http://investor.shareholder.com/arg/airgascontent.cfm.
In addition, Airgas may file a proxy statement with the SEC. Any definitive proxy statement will be mailed to stockholders of Airgas. INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of these documents (if and when available) and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov.
CERTAIN INFORMATION REGARDING PARTICIPANTS
Airgas and certain of its directors and executive officers may be deemed to be participants under the rules of the SEC. Security holders may obtain information regarding the names, affiliations and interests of Airgas directors and executive officers in Airgas Annual Report on Form 10-K for the year ended March 31, 2009, which was filed with the SEC on June 1, 2009, and its proxy statement for the 2009 Annual Meeting, which was filed with the SEC on July 13, 2009. These documents can be obtained free of charge from the sources indicated above. Additional information regarding the interests of these participants in any proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will also be included in any proxy statement and other relevant materials to be filed with the SEC if and when they become available.
FORWARD-LOOKING STATEMENTS
This communication may contain statements that are forward looking, as that term is defined by the Private Securities Litigation Reform Act of 1995, as amended, or by the SEC in its rules, regulations and releases. These statements include, but are not limited to: our having strong prospects for organic and acquisition growth in the coming years; the economy just beginning its recovery; the view that under the terms of Air Products proposal, our stockholders would sacrifice real value and opportunity; our belief that a combination of our two companies could destroy rather than create value; our belief that Air Products tender offer would be highly likely to be subject to substantial delays related to U.S. antitrust clearance; and our prospects for continued growth and stockholder value creation. We intend that such forward-looking statements be subject to the safe harbors created by the Private Securities Litigation Reform Act of 1995, as amended. All forward-looking statements are based on current expectations regarding important risk factors and should not be regarded as a representation by us or any other person that the results expressed therein will be achieved. Airgas assumes no obligation to revise or update any forward-looking statements for any reason, except as required by law. Important factors that could cause actual results to differ materially from those contained in any forward-looking statement include: adverse changes in customer buying patterns resulting from further deterioration in current economic conditions; weakening in the operating and financial performance of our customers, which can negatively impact our sales and ability to collect our accounts receivable; postponement of projects due to the recession; customer acceptance of price increases; the success of implementing and continuing our cost reduction programs; supply cost pressures; increased industry competition; our ability to successfully identify, consummate, and integrate acquisitions; our ability to achieve acquisition synergies; our continued ability to access credit markets on satisfactory terms; significant fluctuations in interest rates; increases in energy costs and other operating expenses eroding planned cost savings; higher than expected implementation costs of the SAP system; conversion problems related to the SAP system that disrupt our business and negatively impact customer relationships; the impact of tightened credit markets on our customers; the impact of changes in tax and fiscal policies and laws; the potential for increased expenditures relating to compliance with environmental regulatory initiatives; the impact of new environmental, healthcare, tax, accounting, and other regulation; continued potential liability under the Multiemployer Pension Plan Amendments Act of 1980 with respect to our participation in or withdrawal from multi-employer pension plans for our union employees; the extent and duration of current recessionary trends in the U.S. economy; the effect of catastrophic events; political and economic uncertainties associated with current world events; and other factors described in Airgas reports, including its March 31, 2009 Form 10-K, subsequent Forms 10-Q, and other documents filed by Airgas with the SEC.
Exhibit (a)(2)
Peter McCausland Chairman and Chief Executive Officer
Airgas, Inc. 259 North Radnor-Chester Road Radnor, PA 19380-5283 |
February 22, 2010
YOUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU
REJECT AIR PRODUCTS OFFER AND NOT TENDER YOUR SHARES
Dear Fellow Airgas Stockholder:
On February 11, 2010, Air Products Distribution, Inc., a wholly owned subsidiary of Air Products and Chemicals, Inc., commenced an unsolicited tender offer to acquire your Airgas shares for $60 each.
After careful consideration, including a thorough review of Air Products Offer with our independent financial and legal advisors, Airgas Board of Directors unanimously determined that Air Products Offer is not in the best interests of Airgas and Airgas stockholders. Your Board strongly recommends that all Airgas stockholders reject Air Products Offer and not tender their shares.
In reaching its recommendation, your Board considered, among other things, that:
| The Offer grossly undervalues Airgas. The Offer does not reflect the value inherent in Airgas future prospects, its extraordinary track record in creating stockholder value over its nearly 30-year history and its position as the largest and most valuable packaged gas business in the world. The Airgas Board is confident that Airgas will, consistent with its history, deliver greater value to its stockholders by executing its strategic plan than would be obtained under the Offer. |
| The Offer and its timing are extremely opportunistic. Air Products is trying to obtain the future value of Airgas at a bargain basement price. Airgas and its stockholders are poised to realize significant benefits as the economy emerges from a deep recession, making this precisely the wrong time to sell Airgas. |
| The Offer is highly uncertain and any payments made to Airgas stockholders would be considerably deferred. We believe the Offer is highly likely to be subject to substantial delays related to U.S. antitrust clearance. Air Products failure to commit to make the necessary divestitures and its failure to obtain antitrust clearance in its last attempt to acquire a major U.S. gas company heighten the concern over regulatory risk and delay. |
| The Offers extraordinarily broad conditions render it illusory. The numerous conditions of the Offer, many of which may be asserted by Air Products in its sole discretion and have low thresholds of materiality, create significant uncertainty and risk as to whether the Offer can be completed and the timing for completion. |
| Air Products has employed highly aggressive tactics including deceptive statements, meritless litigation and misleading personal attacks designed to direct attention away from the grossly undervalued and opportunistic nature of its Offer. These tactics underscore the marked difference between the cultures of the two companies and the challenges Air Products would face in integrating Airgas operations and meeting the needs of its loyal customers. |
| Air Products acquisition of Airgas will likely reduce value. Air Products has a poor acquisition track record, little experience relevant to Airgas business and a synergy plan that demonstrates its fundamental misunderstanding of our business. This is particularly concerning if Air Products again revises its Offer to include stock. |
A complete discussion of these and the other significant factors contributing to the Board of Directors recommendation is included in the enclosed Schedule 14D-9. We urge you to read the Schedule 14D-9 carefully and in its entirety so that you will be fully informed as to your Board of Directors recommendation. The Companys 14D-9 filing is available on the SECs website, www.sec.gov. In addition, the 14D-9 filing and other materials related to Air Products unsolicited proposals are available in the Investor Information section of the Companys website at www.airgas.com, or through the following web address: investor.shareholder.com/arg/airgascontent.cfm. If you have any questions concerning Airgas Schedule 14D-9 or need additional copies of Airgas publicly-filed materials, please contact Innisfree M&A Incorporated at (877) 687-1875 (Toll-Free).
We appreciate your continued support.
Sincerely, |
Peter McCausland |
Chairman and Chief Executive Officer |
Exhibit (a)(3)
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Airgas, Inc 259 N. Radnor-Chester Road Suite 100 Radnor, PA 19087-5283 (610) 687-5253 Fax: (610) 687-1052 http://www.airgas.com |
To: | All Airgas Associates | |
From: | Peter McCausland | |
Date: | February 22, 2010 | |
Subject: | Airgas Board of Directors Responds to Air Products Tender Offer |
This morning, we announced that Airgas Board of Directors, after careful consideration with its independent financial and legal advisors, unanimously voted to reject the unsolicited tender offer launched by Air Products on February 11, because it grossly undervalues Airgas and is not in the best interests of Airgas stockholders. Accordingly, the Board has recommended that Airgas stockholders not tender their shares into Air Products offer. A copy of the press release we issued, which provides more detail on the Boards rationale, is attached.
If you own Airgas shares, whether in a personal account, through the Employee Stock Purchase Plan, or in the 401(k) plan, we urge you to follow the Boards recommendation by not tendering your shares into the Air Products offer.
The Air Products tender offer is scheduled to expire on April 9, 2010, unless extended. In addition, there are many conditions in the offer that make it highly uncertain. We intend to continue our strategic course and create superior shareholder value by operating our business at peak performance, and as Ive mentioned before, the best approach for each of us is to meet and exceed our customers needs.
We are committed to keeping you informed throughout this process. If you have questions, please feel free to reach out to your manager and/or review the materials available through the link titled Air Products Unsolicited Proposal on Airnet or www.airgas.com, which will be updated as we move forward.
As this process unfolds, Airgas will likely continue to be the subject of discussion and speculation in the media. I want to stress that our business objectives remain unchanged. We remain focused on serving our customers and enhancing the stockholder value that we have worked so hard to build through the years.
Should you receive any media inquiries, please forward them to Jay Worley, Vice PresidentCommunications and Investor Relations, at 610-902-6206 or jay.worley@airgas.com, and all investor inquiries should go to Barry Strzelec, Manager-Investor Relations, at 610-902-6256 or barry.strzelec@airgas.com.
As a reminder, throughout this process it is business as usual for all of us here at Airgas. Please stay focused on your day-to-day responsibilities, and continue meeting and exceeding the needs of our customers. Your Board and management team thank you all for your commitment to Airgas.
Sincerely,
Peter McCausland
Chairman and Chief Executive Officer
ADDITIONAL INFORMATION
This communication does not constitute an offer to buy or solicitation of an offer to sell any securities. In response to the tender offer commenced by Air Products Distribution, Inc., a wholly owned subsidiary of Air Products and Chemicals, Inc., Airgas has filed a solicitation/recommendation statement on Schedule 14D-9 with the U.S. Securities and Exchange Commission (SEC). INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of these documents and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov. Also, materials related to Air Products Unsolicited Proposals are available in the Investor Information section of the Companys website at www.airgas.com, or through the following web address: http://investor.shareholder.com/arg/airgascontent.cfm.
In addition, Airgas may file a proxy statement with the SEC. Any definitive proxy statement will be mailed to stockholders of Airgas. INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of these documents (when available) and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov.
CERTAIN INFORMATION REGARDING PARTICIPANTS
Airgas and certain of its directors and executive officers may be deemed to be participants under the rules of the SEC. Security holders may obtain information regarding the names, affiliations and interests of Airgas directors and executive officers in Airgas Annual Report on Form 10-K for the year ended March 31, 2009, which was filed with the SEC on June 1, 2009, and its proxy statement for the 2009 Annual Meeting, which was filed with the SEC on July 13, 2009. These documents can be obtained free of charge from the sources indicated above. Additional information regarding the interests of these participants in any proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will also be included in any proxy statement and other relevant materials to be filed with the SEC if and when they become available.
FORWARD-LOOKING STATEMENTS
This communication may contain statements that are forward looking, as that term is defined by the Private Securities Litigation Reform Act of 1995, as amended, or by the SEC in its rules, regulations and releases. These statements include, but are not limited to: our having strong prospects for organic and acquisition growth in the coming years; the economy just beginning its recovery; the view that under the terms of Air Products proposal, our stockholders would sacrifice real value and opportunity; our belief that a combination of our two companies could destroy rather than create value; our belief that Air Products tender offer would be highly likely to be subject to substantial delays related to U.S. antitrust clearance; and our prospects for continued growth and stockholder value creation. We intend that such forward-looking statements be subject to the safe harbors created by the Private Securities Litigation Reform Act of 1995, as amended. All forward-looking statements are based on current expectations regarding important risk factors and should not be regarded as a representation by us or any other person that the results expressed therein will be achieved. Airgas assumes no obligation to revise or update any forward-looking statements for any reason, except as required by law. Important factors that could cause actual results to differ materially from those contained in any forward-looking statement include: adverse changes in customer buying patterns resulting from further deterioration in current economic conditions; weakening in the operating and financial performance of our customers, which can negatively impact our sales and ability to collect our accounts receivable; postponement of projects due to the recession; customer acceptance of price increases; the success of implementing and continuing our cost reduction programs; supply cost pressures; increased industry competition; our ability to successfully identify, consummate, and integrate acquisitions; our ability to achieve acquisition synergies; our continued ability to access credit markets on satisfactory terms; significant fluctuations in interest rates; increases in energy costs and other operating expenses eroding planned cost savings; higher than expected implementation costs of the SAP system; conversion problems related to the SAP system that disrupt our business and negatively impact customer relationships; the impact of tightened credit markets on our customers; the impact of changes in tax and fiscal policies and laws; the potential for increased expenditures relating to compliance with environmental regulatory initiatives; the impact of new environmental, healthcare, tax, accounting, and other regulation; continued potential liability under the Multiemployer Pension Plan Amendments Act of 1980 with respect to our participation in or withdrawal from multi-employer pension plans for our union employees; the extent and duration of current recessionary trends in the U.S. economy; the effect of catastrophic events; political and economic uncertainties associated with current world events; and other factors described in Airgas reports, including its March 31, 2009 Form 10-K, subsequent Forms 10-Q, and other documents filed by Airgas with the SEC.
Exhibit (a)(4)
Airgas Employee FAQs
GENERAL
1. | What has happened? What has Airgas announced? |
On February 11, 2010, Air Products commenced an unsolicited tender offer to acquire Airgas for $60.00 per share in cash.
On February 22, 2010, Airgas announced that after thorough review and consideration, its Board of Directors unanimously rejected Air Products unsolicited tender offer because it significantly undervalues Airgas and its future prospects and is not in the best interests of Airgas stockholders. The Board unanimously recommends that Airgas stockholders not tender their shares into Air Products offer.
2. | Why did the Board decide to reject Air Products latest offer? |
The reasons for the Airgas Boards recommendation to reject Air Products tender offer include:
| The offer grossly undervalues Airgas. The offer does not reflect the value inherent in Airgas future prospects, its extraordinary track record in creating stockholder value over its nearly 30-year history and its position as the largest and most valuable packaged gas business in the world. The Airgas Board is confident that Airgas will, consistent with its history, deliver greater value to its stockholders by executing its strategic plan than would be obtained under the offer. |
| The offer and its timing are extremely opportunistic. Air Products is trying to obtain the future value of Airgas at a bargain basement price. Airgas and its stockholders are poised to realize significant benefits as the economy emerges from a deep recession, making this precisely the wrong time to sell Airgas. |
| The offer is highly uncertain and any payments made to Airgas stockholders would be considerably deferred. We believe the offer is highly likely to be subject to substantial delays related to U.S. antitrust clearance. Air Products failure to commit to make the necessary divestitures and its failure to obtain antitrust clearance in its last attempt to acquire a major U.S. gas company heighten the concern over regulatory risk and delay. |
| The offers extraordinarily broad conditions render it illusory. The numerous conditions of the offer, many of which may be asserted by Air Products in its sole discretion and have low thresholds of materiality, create significant uncertainty and risk as to whether the offer can be completed and the timing for completion. |
| Air Products has employed highly aggressive tactics including deceptive statements, meritless litigation and misleading personal attacks designed to direct attention away from the grossly undervalued and opportunistic nature of its offer. These tactics underscore the marked difference between the cultures of the two companies and the challenges Air Products would face in integrating Airgas operations and meeting the needs of its loyal customers. |
| Air Products acquisition of Airgas will likely reduce value. Air Products has a poor acquisition track record, little experience relevant to Airgas business and a synergy plan that demonstrates its fundamental misunderstanding of our business. This is particularly concerning if Air Products again revises its offer to include stock. |
3. | How did the Board go about making its decision? |
The Board rejected Air Products unsolicited offer after a thorough review and reached its decision after careful consideration with the assistance of its independent financial and legal advisors.
Bank of America Merrill Lynch and Goldman, Sachs & Co. are serving as financial advisors, and Wachtell, Lipton, Rosen & Katz is serving as legal counsel to Airgas and its Board of Directors.
4. | Will Air Products raise its price now that the Airgas Board of Directors has rejected its tender offer? How long will this process take? |
It is not productive to speculate on what Air Products may or may not do next. Rather, we ask that you all maintain your dedication to your everyday responsibilities.
While there is no way to know how long this process will last, it will remain business as usual at Airgas. Please keep focused on our own growth plan and business.
5. | What should I say to customers, business partners and other stakeholders? |
You should assure all of our companys stakeholders that it is business as usual for Airgas. Our Board and management team remain as focused as ever on achieving our business objectives. You can refer them to our website for our press releases and other materials.
6. | Is there anything employees can be doing to help? |
Yes. Airgas impressive financial and operational achievements are the result of your continued hard work and dedication. Were counting on you, Airgas talented employees, to stay focused and to continue helping us deliver strong returns for our stakeholders.
7. | What effect does this announcement have on my job? |
Employees should expect no change in their positions or responsibilities as a result of this announcement. We are counting on you to continue to perform your job with the same dedication, focus and excellence as always.
8. | Where can I get more information? |
We will do our best to keep you updated throughout this process. You should also feel free to speak with your manager and to review the materials related to the unsolicited tender offer from Air Products that are available on www.airgas.com.
TENDER OFFER / PROXY CONTEST
9. | What is a tender offer? |
A tender offer is a public offer to all of the stockholders of a company asking those stockholders to sell their stock to the party making the tender offer. Typically, a tender offer is commenced when the offeror places a summary advertisement, or tombstone, in a major national newspaper, and the offer to purchase is printed and mailed to the target company's stockholders. A tender offer must comply with the rules and regulations of the Securities and Exchange Commission (SEC), which are quite technical.
It is important to note that Air Products will not be able to purchase any shares tendered until numerous conditions are satisfied, including a number of conditions over which the Airgas Board has control.
10. | What is a Schedule 14D-9 filing? |
A Schedule 14D-9 filing is a Securities and Exchange Commission filing in response to a tender offer in which the target company makes a recommendation to its stockholders. It is, in effect, a description of the Boards recommendation concerning the offer. The Schedule 14D-9 filing is often accompanied by a letter to stockholders letting them know of the Boards decision and providing the background of the offer and rationale for the decision.
11. | What is a proxy fight or a proxy contest? |
A proxy fight (sometimes called a proxy contest) is an effort by a third party to win stockholder votes in an election of the corporations directors or the vote on a proposal put before the stockholders. Typically, the vote is held at a meeting of the stockholders and is a contest between the company and the third party. The stockholders may vote either in person or by proxy. A validly executed proxy permits an eligible voter to vote without being present at the actual meeting.
ADDITIONAL INFORMATION
This communication does not constitute an offer to buy or solicitation of an offer to sell any securities. In response to the tender offer commenced by Air Products Distribution, Inc., a wholly owned subsidiary of Air Products and Chemicals, Inc., Airgas has filed a solicitation/recommendation statement on Schedule 14D-9 with the U.S. Securities and Exchange Commission (SEC). INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of these documents and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov.
In addition, Airgas may file a proxy statement with the SEC. Any definitive proxy statement will be mailed to stockholders of Airgas. INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of these documents (when available) and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov. Also, materials related to Air Products Unsolicited Proposals are available in the Investor Information section of the Companys website at www.airgas.com, or through the following web address: http://investor.shareholder.com/arg/airgascontent.cfm.
CERTAIN INFORMATION REGARDING PARTICIPANTS
Airgas and certain of its directors and executive officers may be deemed to be participants under the rules of the SEC. Security holders may obtain information regarding the names, affiliations and interests of Airgas directors and executive officers in Airgas Annual Report on Form 10-K for the year ended March 31, 2009, which was filed with the SEC on June 1, 2009, and its proxy statement for the 2009 Annual Meeting, which was filed with the SEC on July 13, 2009. These documents can be obtained free of charge from the sources indicated above. Additional information regarding the interests of these participants in any proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will also be included in any proxy statement and other relevant materials to be filed with the SEC if and when they become available.
FORWARD-LOOKING STATEMENTS
This communication may contain statements that are forward looking, as that term is defined by the Private Securities Litigation Reform Act of 1995, as amended, or by the SEC in its rules, regulations and releases. These statements include, but are not limited to: our having strong prospects for organic and acquisition growth in the coming years; the economy just beginning its recovery; the view that under the terms of Air Products proposal, our stockholders would sacrifice real value and opportunity; our belief that a combination of our two companies could destroy rather than create value; our belief that Air Products tender offer would be highly likely to be subject to substantial delays related to U.S. antitrust clearance; and our prospects for continued growth and stockholder value creation. We intend that such forward-looking statements be subject to the safe harbors created by the Private Securities Litigation Reform Act of 1995, as amended. All forward-looking statements are based on current expectations regarding important risk factors and should not be regarded as a representation by us or any other person that the results expressed therein will be achieved. Airgas assumes no obligation to revise or update any forward-looking statements for any reason, except as required by law. Important factors that could cause actual results to differ materially from those contained in any forward-looking statement include: adverse changes in customer buying patterns resulting from further deterioration in current economic conditions; weakening in the operating and financial performance of our customers, which can negatively impact our sales and ability to collect our accounts receivable; postponement of projects due to the recession; customer acceptance of price increases; the success of implementing and continuing our cost reduction programs; supply cost pressures; increased industry competition; our ability to successfully identify, consummate, and integrate acquisitions; our ability to achieve acquisition synergies; our continued ability to access credit markets on satisfactory terms; significant fluctuations in interest rates; increases in energy costs and other operating expenses eroding planned cost savings; higher than expected implementation costs of the SAP system; conversion problems related to the SAP system that disrupt our business and negatively impact customer relationships; the
impact of tightened credit markets on our customers; the impact of changes in tax and fiscal policies and laws; the potential for increased expenditures relating to compliance with environmental regulatory initiatives; the impact of new environmental, healthcare, tax, accounting, and other regulation; continued potential liability under the Multiemployer Pension Plan Amendments Act of 1980 with respect to our participation in or withdrawal from multi-employer pension plans for our union employees; the extent and duration of current recessionary trends in the U.S. economy; the effect of catastrophic events; political and economic uncertainties associated with current world events; and other factors described in Airgas reports, including its March 31, 2009 Form 10-K, subsequent Forms 10-Q, and other documents filed by Airgas with the SEC.
Exhibit (a)(5)
Mike Molinini Chief Operating Officer
Airgas, Inc. 259 North Radnor-Chester Road Suite 100 Radnor, PA 19087 http://www.airgas.com |
February 22, 2010
Dear Valued Customer:
I am writing to update you on recent developments at Airgas. As you may know, on Thursday, February 11, 2010, Air Products and Chemicals, Inc. commenced a tender offer to acquire Airgas.
This morning, Airgas announced that our Board of Directors, after careful consideration with its independent financial and legal advisors, unanimously voted to reject the unsolicited tender offer, and has recommended that Airgas stockholders not tender their shares into Air Products offer. Our Board determined that Air Products offer like the proposals previously reviewed and rejected by the Board grossly undervalues Airgas and is not in the best interests of Airgas and its stockholders. The press release we issued today detailing the reasons for the Boards decision is attached.
Our relationship with you is extremely important to all of us here at Airgas, and I want to assure you that it is business as usual. As always, we remain committed to serving our customers and to providing the best solutions for your specific needs.
From time to time, we may update you with information regarding Air Products offer that we believe to be important to our ongoing relationship. Our most current materials will also be available on our website at www.airgas.com. Should you have any additional questions, please dont hesitate to contact your local Airgas representatives.
Thank you for your business and trust in Airgas.
Sincerely,
ADDITIONAL INFORMATION
This communication does not constitute an offer to buy or solicitation of an offer to sell any securities. In response to the tender offer commenced by Air Products Distribution, Inc., a wholly owned subsidiary of Air Products and Chemicals, Inc., Airgas has filed a solicitation/recommendation statement on Schedule 14D-9 with the U.S. Securities and Exchange Commission (SEC). INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of these documents and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov. Also, materials related to Air Products Unsolicited Proposals are available in the Investor Information section of the Companys website at www.airgas.com, or through the following web address: http://investor.shareholder.com/arg/airgascontent.cfm.
In addition, Airgas may file a proxy statement with the SEC. Any definitive proxy statement will be mailed to stockholders of Airgas. INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of these documents (if and when available) and other documents filed with the SEC by Airgas through the web site maintained by the SEC at http://www.sec.gov.
CERTAIN INFORMATION REGARDING PARTICIPANTS
Airgas and certain of its directors and executive officers may be deemed to be participants under the rules of the SEC. Security holders may obtain information regarding the names, affiliations and interests of Airgas directors and executive officers in Airgas Annual Report on Form 10-K for the year ended March 31, 2009, which was filed with the SEC on June 1, 2009, and its proxy statement for the 2009 Annual Meeting, which was filed with the SEC on July 13, 2009. These documents can be obtained free of charge from the sources indicated above. Additional information regarding the interests of these participants in any proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will also be included in any proxy statement and other relevant materials to be filed with the SEC if and when they become available.
FORWARD-LOOKING STATEMENTS
This communication may contain statements that are forward looking, as that term is defined by the Private Securities Litigation Reform Act of 1995, as amended, or by the SEC in its rules, regulations and releases. These statements include, but are not limited to: our having strong prospects for organic and acquisition growth in the coming years; the economy just beginning its recovery; the view that under the terms of Air Products proposal, our stockholders would sacrifice real value and opportunity; our belief that a combination of our two companies could destroy rather than create value; our belief that Air Products tender offer would be highly likely to be subject to substantial delays related to U.S. antitrust clearance; and our prospects for continued growth and stockholder value creation. We intend that such forward-looking statements be subject to the safe harbors created by the Private Securities Litigation Reform Act of 1995, as amended. All forward-looking statements are based on current expectations regarding important risk factors and should not be regarded as a representation by us or any other person that the results expressed therein will be achieved. Airgas assumes no obligation to revise or update any forward-looking statements for any reason, except as required by law. Important factors that could cause actual results to differ materially from those contained in any forward-looking statement include: adverse changes in customer buying patterns resulting from further deterioration in current economic conditions; weakening in the operating and financial performance of our customers, which can negatively impact our sales and ability to collect our accounts receivable; postponement of projects due to the recession; customer acceptance of price increases; the success of implementing and continuing our cost reduction programs; supply cost pressures; increased industry competition; our ability to successfully identify, consummate, and integrate acquisitions; our ability to achieve acquisition synergies; our continued ability to access credit markets on satisfactory terms; significant fluctuations in interest rates; increases in energy costs and other operating expenses eroding planned cost savings; higher than expected implementation costs of the SAP system; conversion problems related to the SAP system that disrupt our business and negatively impact customer relationships; the impact of tightened credit markets on our customers; the impact of changes in tax and fiscal policies and laws; the potential for increased expenditures relating to compliance with environmental regulatory initiatives; the impact of new environmental, healthcare, tax, accounting, and other regulation; continued potential liability under the Multiemployer Pension Plan Amendments Act of 1980 with respect to our participation in or withdrawal from multi-employer pension plans for our union employees; the extent
and duration of current recessionary trends in the U.S. economy; the effect of catastrophic events; political and economic uncertainties associated with current world events; and other factors described in Airgas reports, including its March 31, 2009 Form 10-K, subsequent Forms 10-Q, and other documents filed by Airgas with the SEC.
![]() Our
Rejection of Air Products Our Rejection of Air Products Proposals Proposals (Updated) (Updated) February 22, 2010
February 22, 2010 Exhibit
(a)(6) |
![]() 1
1 This presentation contains statements that are forward looking, as that term is defined
by the Private Securities Litigation Reform Act of 1995, as amended, or by
the SEC in its rules, regulations and releases. These statements include, but are not limited to: our having strong prospects for organic and acquisition growth in the coming
years; the economy just beginning its recovery; the view that under the terms of Air Products proposal, our stockholders would sacrifice real value and opportunity; our belief that a combination of our two companies could destroy rather than create value; and our prospects for continued growth and stockholder value creation. We intend that such forward-looking
statements be subject to the safe harbors created thereby. All
forward-looking statements are based on current expectations regarding important risk factors and should not be regarded as a representation by us or any other person that the results expressed
therein will be achieved. Airgas assumes no obligation to revise or update
any forward-looking statements for any reason, except as required by law. Important factors that could cause actual results to differ materially from those contained in any
forward-looking statement include: adverse changes in customer buying patterns resulting from further deterioration in current economic conditions; weakening in the operating and financial performance of our customers, which can negatively impact our sales and
ability to collect our accounts receivable; postponement of projects due to
the recession; customer acceptance of price increases; the success of implementing and continuing our cost reduction programs; supply cost pressures; increased industry
competition; our ability to successfully identify, consummate, and integrate acquisitions; our ability to achieve acquisition synergies; our continued ability to access credit markets on satisfactory terms; significant fluctuations in interest rates;
increases in energy costs and other operating expenses eroding planned cost
savings; higher than expected implementation costs of the SAP system; conversion problems related to the SAP system that disrupt our business and negatively impact customer
relationships; the impact of tightened credit markets on our customers; the
impact of changes in tax and fiscal policies and laws; the potential for increased expenditures relating to compliance with environmental regulatory initiatives; the
impact of new environmental, healthcare, tax, accounting, and other
regulation; continued potential liability under the Multiemployer Pension Plan Amendments Act of 1980 with respect to our participation in or withdrawal from multi-employer pension plans
for our union employees; the extent and duration of current recessionary trends in the U.S. economy; the effect of catastrophic events; political and economic uncertainties associated with current world events; and other factors described in Airgas reports, including its March 31, 2009 Form 10-K, subsequent Forms 10-Q, and other documents filed by Airgas with the
SEC. Forward-Looking Statements Forward-Looking Statements 1 1 |
![]() 2
2 2 2 ADDITIONAL INFORMATION This communication does not constitute an offer to buy or solicitation of an offer to
sell any securities. In response to the tender offer commenced by Air
Products Distribution, Inc., a wholly owned subsidiary of Air Products and Chemicals, Inc., Airgas has filed a solicitation/recommendation statement on Schedule 14D-9 with the
U.S. Securities and Exchange Commission (SEC). INVESTORS AND
SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER DOCUMENTS
FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of these
documents and other documents filed with the SEC by Airgas through the web
site maintained by the SEC at http://www.sec.gov. In
addition, Airgas may file a proxy statement with the SEC. Any definitive proxy statement will be mailed to stockholders of Airgas. INVESTORS AND SECURITY HOLDERS OF AIRGAS ARE URGED TO READ THESE AND OTHER
DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME
AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors
and security holders will be able to obtain free copies of these documents (if and when available) and other documents filed with the SEC by Airgas through the web
site maintained by the SEC at http://www.sec.gov. CERTAIN
INFORMATION REGARDING PARTICIPANTS Airgas and certain of its respective
directors and executive officers may be deemed to be participants under the rules of the SEC. Security holders may obtain information regarding the names, affiliations and interests of Airgas directors and executive officers in Airgas Annual Report on Form 10-K for the year ended March 31, 2009, which was filed with
the SEC on June 1, 2009, and its proxy statement for the 2009 Annual Meeting, which was filed with the SEC on July 13, 2009. These documents can be obtained free of charge from the sources indicated above. Additional information regarding the interests of these participants in any proxy solicitation and a description of their direct and indirect
interests, by security holdings or otherwise, will also be included in any
proxy statement and other relevant materials to be filed with the SEC if and when they become available. |
![]() Why We
Rejected Air Products Why We Rejected Air Products Proposals Proposals |
![]() 4 4 Why Airgas Why Airgas Board Has Rejected Air Board Has Rejected Air Products Products Proposals Proposals Air Products proposals: Grossly undervalue Airgas Do not reflect value of Airgas industry-leading position, unrivaled platform, and substantial recent investments Attempt to exploit a temporary valuation anomaly Do not reflect Airgas significant opportunities in economic recovery Airgas standalone value proposition is superior to Air Products proposals Track record of double-digit growth 11% Revenue CAGR 17% EBITDA* CAGR 20% Diluted EPS CAGR 21% Cashflow from Operations* CAGR Outstanding share price performance 4,201% total shareholder return since IPO 85% total shareholder return in past 5 years 4 4 Note: CAGR (Compound Annual Growth Rate) calculated over 2001-2009 period and based on company filings
calendarized to December year end. Total shareholder return as of February 4, 2010
*See attached reconciliation of non-GAAP measures |
![]() 5
5 Airgas Airgas Investment Highlights Investment Highlights The premier packaged gases company with leading market position in a consolidating industry Management and Boards 11.8% equity ownership strongly aligns our interests
with shareholders Organic growth in excess of end-market demand through leveraging existing
infrastructure Unmatched product and service offerings serving customer base diversified across industries Poised to capitalize on substantial infrastructure investment and industry consolidation achieved over the last decade Significant value still to be realized from efficiency programs and continued
development of our operating culture Resilient financial performance and significant leverage to expected economic
recovery Strong cash flow drives shareholder value creation 5 5 |
![]() ![]() 6
6 6 6 6 6 Background to Air Products Background to Air Products Proposals Proposals October 15, 2009: Air Products CEO made an unsolicited verbal proposal to Airgas CEO to acquire Airgas for $60 per share on an all-stock basis November 20, 2009: Air Products CEO sent a letter to Airgas CEO making an unsolicited proposal to acquire Airgas for $60 per share on an all-stock basis
December 17, 2009: Air Products CEO sent a letter to Airgas CEO with an unsolicited proposal to acquire Airgas for $62 per share including up to 50% cash consideration February 4, 2010: Air Products CEO sent a letter to Airgas CEO with an unsolicited proposal to acquire Airgas for a reduced price of $60 per share on an all-cash basis February 11, 2010: Air Products commenced tender offer at the same $60 price per share Source: Airgas Schedule 14D-9 dated February 22, 2010 Airgas Board of Directors Has Unanimously Rejected Each of Air Products Proposals Because They Significantly Undervalue Airgas and its Future Prospects |
![]() Airgas
Airgas Creating Shareholder Value Creating Shareholder Value |
![]() ![]() 8
8 8 8 We Are Highly Confident We Are Highly Confident in Our Mid-Term Financial Goals in Our Mid-Term Financial Goals TTM 9/30/09 Sales $4B Operating Margin 11.5% ROC* 10.8% Acquired Sales CAGR ~3% SSS CAGR ~5%-7% Cost Savings Initiatives ~60-80 bps Op. Leverage on Sales Growth ~100-150 bps Assumptions Revenue Growth Op. Margin Expansion Capex 5-6% of sales Additional Assumptions Core products CAGR 3-5%; Strategic Products CAGR 7-9% $150M in sales acquired annually Non-Tech IP avg annual growth rate 2-3% * See non-GAAP reconciliations attached. Note: CAGR = Compound Annual Growth Rate FY13-14 Goals Sales $5.5B+ Operating Margin 13%-14% ROC* 14.5%-15.5% |
![]() ![]() ![]() 9
9 Calendar 2012 View of Mid-Term Goals Calendar 2012 View of Mid-Term Goals SSS CAGR ~7% Core products CAGR 3-5%; Strategic Products CAGR 7-9% Non-Tech IP CAGR 2-3% Acquired Sales CAGR ~3% Operating Efficiency Programs ~60 bps Non-dependent on economy Specific Programs Identified Op. Leverage on Sales Growth ~50 bps Assumptions * See attached non-GAAP reconciliations for EBITDA and CY2009 Adjusted EPS.
NOTE: CAGR = Compound Annual Growth Rate Revenue Growth Operating / EBITDA Margin Expansion Strong Cash Flow / Debt Pay Down CY2009 CY2008 Sales $3.9B EBITDA Margin* 17.3% EPS* $2.67 Sales $4.4B EBITDA Margin* 17.0% EPS $3.19 Earnings and cash flow drive 20% CAGR Dividends Per Share $0.70 Dividends Per Share $0.52 CY2012 CY2012 2 Sales Sales $5.2B+ $5.2B+ EBITDA EBITDA Margin* Margin* 18%-18.5% 18%-18.5% EPS EPS $4.20+ $4.20+ Dividends Dividends Per Share Per Share $1.20 $1.20 Growth Accelerators and further leverage of infrastructure and broad product & service offerings drive above market growth and provide further upside for Sales and Earnings Cost reductions and operating efficiencies of ~$70 million since Dec 2008 Strong momentum into Dec-08 prior to 2009 recession Significant leverage to economic recovery |
![]() 10 10 Consistently Strong Performance Consistently Strong Performance Against Mid-Term Financial Goals Against Mid-Term Financial Goals 10 10 * Results exclude unusual items. See attached non-GAAP reconciliations. Performing well toward FY11 Goals prior to 2009 recession Highly confident in our mid-term goals |
![]() ![]() Airgas
Fiscal Year EPS Results vs. Airgas Fiscal Year EPS Results vs. Guidance & Consensus Guidance & Consensus 11 11 ____________________ Consensus Estimates Source: FactSet as of February 12, 2010. Initial FY EPS ARG Guidance vs. FY EPS Results Fiscal Year Initial Guidance Date Guidance Range EPS* Results FY06 May-05 $1.43 - $1.50 $1.54 FY07 May-06 $1.76 - $1.84 $2.00 FY08 May-07 $2.33 - $2.41 $2.68 FY09 May-08 $3.24 - $3.40 $3.12 FY10 May-09 $2.60 - $2.90 $2.66 - $2.70** * See attached non-GAAP reconciliations. ** Range based on 4Q10 guidance provided on 1/28/10. Performance consistently at or above Street expectations |
![]() 12 12 Delivering Superior Growth to Shareholders Delivering Superior Growth to Shareholders 12 12 Revenue 2001-2009 CAGR EBITDA (b) 2001-2009 CAGR EBITDA Capex (a) 2001-2009 CAGR Note: CAGR = Compound Annual Growth Rate Note: Financial data based on calendar year end. See attached reconciliations for
non-GAAP measures (a) Capex net of proceeds from sales of plant and equipment (b) Airgas figures exclude loss due to debt extinguishment and multi-employer pension
withdrawal charges (c) Diluted EPS reflects earnings per diluted share before the cumulative effect of change
in accounting principle Diluted EPS (c) 2001-2009 CAGR 11 % 15 % 17 % 20 % Revenue EBITDA - Capex EBITDA Diluted EPS |
![]() 13 13 Delivering Superior Value to Shareholders Delivering Superior Value to Shareholders 13 13 Absolute Total Shareholder Return Since Airgas IPO (a) 4,201% Total Shareholder Return CAGR Since Airgas IPO (a) 18% Total Shareholder Return Since January 1, 1987 Ranking in S&P 500 (b) #26 highest out of 500 Officer and Director Stock Beneficial Ownership 11.8% Officer and Director Stock Beneficial Ownership Ranking in S&P 500 #29 highest out of 500 Note: Market data as of February 4, 2010 (a) Split-adjusted, since Airgas IPO in 1986. Total Shareholder Return calculated as share price plus dividends reinvested. (b) Excludes current S&P 500 constituents which were not public at January 1,
1987. |
![]() Airgas Airgas Growth Strategy Growth Strategy |
![]() 15 15 Airgas is the Premier U.S. Packaged Airgas is the Premier U.S. Packaged Gas Company Gas Company 15 15 |
![]() ![]() 16 16 16 16 Unparalleled Distribution Platform Unparalleled Distribution Platform 1,100+ Locations 850+ retail stores 325+ HP fill plants 16 ASUs 19 acetylene plants 7 liquid CO 2 production plants 65+ regional spec gas labs 9 national spec gas labs 6 hardgoods distribution centers 14,000+ Associates ~1,500 sales people (25% specialists) 5,000+ drivers 10M+ Cylinders 13,000+ Bulk Tanks 5,000+ Vehicles Branch Location / Retail Store / Other Air Separation Unit (ASU) Hardgoods Distribution Center |
![]() 17 17 Leader in Our Product and Service Offerings Leader in Our Product and Service Offerings 17 17 Undisputed leader of the U.S. packaged gas market Leading position in U.S. packaged industrial, medical, and specialty gas market Significant position in U.S. bulk market Leading platform for U.S. refrigerants, ammonia, and process chemicals A leading producer of various gases Fifth largest U.S. producer of atmospheric gases Leading U.S. supplier of liquid CO 2 and dry ice Largest U.S. producer of nitrous oxide Leading supplier of hardgoods in U.S. Welding, safety and related MRO supplies Red-D-Arc ® rental welders National platform supports multiple sales channels: Branch-based field sales Retail stores Strategic Accounts Distributors Telesales Catalog eBusiness |
![]() ![]() 18
18 Growth Accelerators Growth Accelerators Growth "Accelerators" Projected to Add 3 -4% to Base Top-line Growth, and Result in Significant Earnings Growth Due to Airgas Operating Leverage |
![]() 19 19 Broad Product and Service Offerings Broad Product and Service Offerings Delivered to Diversified Customer Segments Delivered to Diversified Customer Segments 19 19 |
![]() 20 20 20 20 Bulk Gas Bulk Gas Medical Sales Medical Sales Safety Products Safety Products CO CO 2 2 /Dry Ice /Dry Ice 3Q10: Broad-based sequential increase in customer activity; continued strong existing customer penetration Long-term: Strong cross-sell, customer base under-penetrated 3Q10: Sequential improvement in industrial mfg, including steel, auto, and alt. energy; continued strength in food-freezing Long-term: Application growth, engineering solutions, sales force presence in the field 3Q10: Slowing in elective and non-critical procedures more than offset by new customer signings Long-term: Population demographics for respiratory therapy, full range of supply modes, strong cross-sell 3Q10: Difficult YoY comps due to prior year surcharges; sequential decline due to seasonality of business Long-term: Food product applications, beverage market Specialty Gas Specialty Gas 3Q10: Slowing in chemical processing industries YoY; demand for core spec gases, including EPA protocols, improving sequentially Long-term: Application growth, environmental regulations, enhanced capabilities -14% 5% -4% 8% 8% 3-Year CAGR 3Q10 3Q10 Organic Organic Growth Growth Strategic Products represent ~40% of total sales and have strong growth profiles due to: Favorable customer segments Application development Increasing environmental regulation Strong cross-sell Quarterly Sales Commentary / Long-Term Growth Accelerators Strategic Products Strategic Products Strategic Products Drive Above-Market Strategic Products Drive Above-Market Growth Growth 6% 6% 3-Year CAGR 3Q10 3Q10 Organic Organic Growth Growth -5% 12% 12% -5% 8% 8% 2% 2% 9% 9% -7% 6% 6% -5% 1% 1% 2% 2% 3Q10 3Q10 Seq. DSR Seq. DSR Growth Growth 3% 3% 5% 5% 3% 3% 4% 4% -7% 3Q10 3Q10 Seq. DSR Seq. DSR Growth Growth Total Same-Store Sales Total Strategic Products Total Strategic Products Note: CAGR = Compound Annual Growth Rate |
![]() ![]() 21
21 Fragmented and Still Consolidating Industry Fragmented and Still Consolidating Industry 21 21 Core U.S. packaged gas and welding hardgoods business, highly fragmented, more than 900 packaged gas distributors Independent distributors account for about 50%, half of which is comprised of the largest 100 independents 100 largest
average $30M annual revenue Balance
averages $4.5M annual revenue Local, service-intensive business, compete in geographic radius of about 50 75 miles Note: Above data based on Management estimates Airgas is strategically positioned as the preferred acquirer
|
![]() 22 22 Acquisitions have helped drive growth and expand our product offering Proven ability to buy and build 22 22 Growth Through Acquisition Integration Growth Through Acquisition Integration 22 22 Business Unit Sales Acquired Date Performance Today Airgas Safety $169M 96/97 $450M+ profitable platform w/ double-digit growth Red-D-Arc ® Welderentals $15M 96 $120M+ revenue w/ above average profitability Airgas Puritan Medical $70M 00 $300M+ revenue w/ product & platform expansions Ammonia $65M 06 $100M+ revenue as part of Airgas Specialty Products Airgas Merchant Gases $176M 07 Significant enhancement to existing bulk capabilities; $400M+ revenue ; more than doubled bulk gas business upon integration |
![]() 23 23 23 23 23 23 * See attached non-GAAP reconciliations. 1Q09 2Q09 3Q09 4Q09 1Q10 2Q10 3Q10 Sales $1,117M $1,162M $1,079M $992M $979M $962M $942M Sales/Day $17.5M $18.2M $17.4M $15.7M $15.3M $15.0M $15.2M Seq. Chg. 3% 4% -4% -10% -3% -2% +1% SSS 7% 8% 1% -13% -17% -19% -14% EBITDA* $189M $200M $186M $172M $165M $170M $165M EBITDA Margin* 16.9% 17.2% 17.2% 17.4% 16.8% 17.7% 17.5% Adj. EPS* $0.81 $0.86 $0.76 $0.68 $0.66 $0.68 $0.65 FCF* $58M $54M $59M $157M $119M $105M $66M Profitability preserved in extraordinarily difficult economic environment Stable cylinder and cryogenic tank rental revenue Quick, effective expense reduction Strategic Accounts / Products outperformed core industrial business 3Q10 first sequential improvement in daily sales since 2Q09 Durable Business Model Durable Business Model Across Economic Cycles Across Economic Cycles |
![]() 24 24 24 24 Cost Savings Programs Cost Savings Programs Drive Margin Improvement Drive Margin Improvement Established goal of $25M annual run-rate operating efficiencies by September 2010 Have achieved over $25M savings Routing logistics $7M+ Cylinder testing $6M+ Freight $5M+ Plant studies $3M+ Fuel $2M+ Indirect spend $2M At December 2009 Analyst Meeting, announced new savings target of $40M over next 4 years Logistics, plant studies and cylinder testing will drive savings Approximately $10M each year |
![]() ![]() $446M $66M 25 25 25 25 * See non-GAAP reconciliations attached. NOTE: CAGR = Compound Annual Growth Rate Strong Cash Flow Strong Cash Flow Drives Shareholder Value Creation Drives Shareholder Value Creation Strong Cash Flow from Operations* Funds growth / maint. capex Returns cash to stockholders through Funds acquisitions dividends and share repurchases Accelerates debt paydown |
![]() 26 26 26 26 Significant Upside Remains for Airgas Significant Upside Remains for Airgas Shareholders Shareholders Acquisition opportunities still abundant in a highly-fragmented industry
considerable leverage to our premier distribution infrastructure
Sales & marketing alignment by customer segment only recently expanded to
all target segments tremendous leverage to fast-growing Strategic Accounts program Transition to customer-centric operating culture will enhance cross-sell
opportunities for an already compelling product and service offering Strategic Products growth will outperform the core business during the economic recovery SAP platform to unlock significant yet-to-be-quantified incremental benefits
provide upside to our mid-term financial targets Agility to identify and quickly integrate adjacencies opportunities for additional adjacencies Growth in adjacencies like refrigerants and diesel exhaust fluid will accelerate under tighter regulatory standards in the next several years
|
![]() Why
Air Products Why Air Products Proposals Are Proposals Are Opportunistic Opportunistic |
![]() 28 28 28 28 Market Perspectives on Air Products Market Perspectives on Air Products Opportunistic Proposal Opportunistic Proposal Im concerned about integration risk
When you have a company acquiring a
business that its not intimately familiar with sometimes they
dont wind up with the results that they think they will
Im not seeing the global synergies that [Air Products has] talked about. John Rogers, Moodys Investor Service, 18 February 2010 Air Products bid to acquire Airgas is a take-under. Mark Gulley, Soleil Securities, 5 February 2010 While $60 is a 38% premium, ARGs stock was already there less than 18-months ago." Edward Yang, Oppenheimer, 5 February 2010 FY11 earnings estimates do not likely fully reflect ARG's earnings power. Michael Sison, KeyBanc, 5 February 2010 The move is a bit surprising to us, since Air Products got out of the packaged
gases business several years ago by selling its business to Airgas ... our concern is why did Air Products sell the business in the first place, only to reacquire it later? P.J. Juvekar, Citi, 5 February 2010 Permission to use quotations neither sought nor obtained. |
![]() 29 29 29 29 Air Products Highlights Some of the Air Products Highlights Some of the Compelling Elements of Airgas Compelling Elements of Airgas Business Business Air Products CEO John McGlade at Barclays Capital Industrial Select Conference on Feb. 17, 2010:
given
some of the market sectors or the industry sectors that Airgas is involved in, this gives us a really good opportunity for Air Products in the United States to access
some of the industry sectors that you have here fabrication, construction, pharmaceuticals, etc
in many cases, these industries buy proportionally more packaged gases than they do liquid bulk. So largely not really available to Air Products in the U.S. market
these are good industries, and typically, if you look at most of these, they arent cyclical in the nature of some industrial cycle. In fact, in many cases really follow more of a population type of cycle in the food, the medical, pharmaceuticals, etc.
the
North American market still represents 28% of the worlds growth over the next five years. Its a very attractive market.
ability in this space to continue to do roll-up acquisitions in the packaged gas space and some of the cross-selling opportunities and the industry sector opportunities
[Air Products
was] impacted by the global recession just like every company was impacted in the global recession. Permission to use quotations neither sought nor obtained. |
![]() 30 30 30 30 Air Products Admits Air Products Admits its Proposals Are Opportunistic its Proposals Are Opportunistic Timing is excellent Air Products investor presentation, 5 February 2010 We believe the timing of the combination is ideal. The economy is just beginning to emerge from recession John McGlade, Air Products Chairman, President and CEO, Air Products press release, 5 February 2010 We said how much can we give to the Airgas shareholders and still have this be a very, very good deal for the Air Products shareholders Paul Huck, Air Products SVP & CFO, Air Products investor call, 5 February
2010 Permission to use quotations neither sought nor obtained.
|
![]() 31 31 Airgas Airgas Stock Price Has Consistently Stock Price Has Consistently Outperformed
Outperformed
31 31 Indexed Price Performance to February 4, 2010 Source: Bloomberg as of February 4, 2010 (100)% 0% 100% 200% 300% 400% 500% 600% 700% 800% 900% 1,000% Jan-2001 Jul-2002 Jan-2004 Jul-2005 Jan-2007 Jul-2008 Feb-2010 Airgas Air Products S&P 500 Index 539.0 79.7 (19.5) Airgas Has Delivered Consistently Superior Share Price Performance
|
![]() 32 32
Driving Superior Total Shareholder
Driving Superior Total Shareholder Returns in Nearly Every Measurable Period Returns in Nearly Every Measurable Period 32 32 Source: Company filings and Bloomberg data Note: Total Shareholder Return calculated based on share price plus dividends
reinvested. Cumulative Total Shareholder Return to January 1, 2010
|
![]() 33 33 Airgas Has Significantly Airgas Has Significantly Outperformed Air Products Outperformed Air Products 33 33 Revenue 2001-2009 CAGR EBITDA * 2001-2009 CAGR EBITDA * Capex 2001-2009 CAGR Source: Financials based on company filings calendarized to December year end.
* See attached reconciliation of non-GAAP measures. Diluted EPS 2001-2009 CAGR 5% 11% Airgas Air Products 5% 17% Airgas Air Products 15% 5% Airgas Air Products 7% 20% Airgas Air Products Note: CAGR = Compound Annual Growth Rate |
![]() 34 34 Airgas Airgas Superior Track Record Superior Track Record in Executing Acquisitions in Executing Acquisitions 34 34 Since 2000 Airgas Air Products Number of Acquisitions 91 21 Total Disclosed Value of Acquisitions $2,210 million $1,765 million Acquisition and Restructuring Related Charges ($mm) $21 million $393 million (1) Acquisition Value Leakage (2) 1% 22% Source: Company public filings (1) Includes impairment charge on sale of U.S. Healthcare operations in 2009 and HPPC
Business in 2007. Excludes charges and losses on currency hedges related to aborted BOC transaction. (2) Defined as acquisition and restructuring related charges as percentage of total
disclosed value of acquisitions. |
![]() 35 35 Proposals Exploit Airgas Proposals Exploit Airgas Only Significant Only Significant Annual EBITDA Decline in 22 Years Annual EBITDA Decline in 22 Years 35 35 Source: Financials per company filings based on March fiscal year end. * See attached reconciliation of non-GAAP measures. Annual EBITDA by Fiscal Year* TTM Dec 31, 2009 $27 $41 $109 $196 $191 $190 $197 $236 $256 $314 $396 $489 $666 $746 $672 $50 $145 $139 $62 $38 $79 $194 $0 $200 $400 $600 $800 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 |
![]() 36 36 36 36 A Temporary Market Overreaction A Temporary Market Overreaction Source: Bloomberg; market data as of February 4, 2010 $20 $30 $40 $50 $60 $70 $80 Jan-09 Feb-09 Mar-09 Apr-09 May-09 Jun-09 Jul-09 Aug-09 Sep-09 Oct-09 Nov-09 Dec-09 Jan-10 Feb-10 $43.53 Airgas Stock Price January 15 February 4 (14)% (12)% (10)% (8)% (6)% (4)% (2)% 0% 2% 15-Jan 22-Jan 29-Jan January 28, 2010 Airgas announces Q3 FY 2010 earnings miss guidance by just 2 cents (3.0%), stock falls 10% (10)% |
![]() 37 37 Airgas is Well-Positioned Airgas is Well-Positioned for the U.S. Economic Recovery for the U.S. Economic Recovery 37 37 Note: GDP forecasts per Bloomberg consensus as of February 9, 2010. Airgas estimates per
IBES as of February 4, 2010. EBITDA calendarized to December year
end 0.4 % 24 % 25 % 3.6 % 3.1 % 2.7 % 2.1 % (2.4)% 2.7 % 2.9 % 22 % 7 % (11)% 24 % 10 % 33 % (15.0)% (5.0)% 5.0 % 15.0 % 25.0 % 35.0 % 2004 2005 2006 2007 2008 2009 2010E 2011E U.S. GDP Growth Airgas EBITDA Growth U.S. GDP Growth and Airgas EBITDA Growth (% Year-over-Year) |
![]() ![]() 38
38 Same Same -Store -Store Sales Sales Are Are Beginning Beginning to to Rebound Rebound Our Same-Store Sales Grow in Excess of Non-Tech Industrial Production, Which
Has Now Troughed and Begun to Demonstrate Quarterly Growth -25% -20% -15% -10% -5% 0% 5% 10% 15% ARG Dist. SSS Non-tech IP |
![]() ![]() 39
39 0 20 % 40 % 60 % 80 % 100 % 120 % 140 % 160 % 180 % Mar-98 Mar-99 Mar-00 Mar-01 Mar-02 Mar-03 Mar-04 15 months 31% recovery 78% post-recovery EPS growth 0% 20% 40% 60% 80% 100% 120% 140% 160% 180% Mar-98 Mar-99 Mar-00 Mar-01 Mar-02 Mar-03 Mar-04 22 months 346% recovery Prior cycle peak April 1998 Now is Precisely the Now is Precisely the Wrong Time to Sell Airgas Wrong Time to Sell Airgas 39 39 Share Price Indexed to Peak 1998-2004 EPS Indexed to Peak 1998-2004 Sources: Bloomberg, CapitalIQ Airgas EPS and Share Price Performance Recover Late in the Cycle but Perform Strongly in Periods of Economic Recovery and Expansion
|
![]() Conclusion Conclusion |
![]() 41 41 Air Products Air Products Proposals Grossly Proposals Grossly Undervalue Airgas and Are Opportunistic Undervalue Airgas and Are Opportunistic 41 41 Air Products proposals: Grossly undervalue Airgas Do not reflect value of Airgas industry-leading position, unrivaled platform, and substantial recent investments Attempt to exploit a temporary valuation anomaly Do not reflect Airgas significant opportunities in economic recovery Airgas standalone value proposition is superior to Air Products proposals Track record of double-digit growth 11% Revenue CAGR 17% EBITDA* CAGR 20% Diluted EPS CAGR 21% Cashflow from Operations* CAGR Outstanding share price performance 4,201% total shareholder return since IPO 85% total shareholder return in past 5 years Note: CAGR (Compound Annual Growth Rate) calculated over 2001-2009 period and based on company filings
calendarized to December year end. Total shareholder return as of February 4, 2010 *See attached reconciliation of non-GAAP measures |
![]() Appendix Appendix |
![]() 43 43 43 43 Reconciliation: Return on Capital Reconciliation: Return on Capital ($millions) FY13-14E TTM 9/30/09 Operating Income (TTM) $750 $463 5-Quarter Averages: Total Assets 5,260 4,380 Securitized Trade Receivables 320 320 Current Liabilities (net of debt) (580) (434) Average Capital Employed $5,000 $4,266 Return on Capital 15.0% 10.8% The Company believes this return on capital computation helps investors assess how
effectively the Company uses the capital invested in its operations. Our
management uses return on capital as a metric for determining employee compensation. Non-GAAP numbers should be read in conjunction with the GAAP financial measures, as non-GAAP
metrics are merely a supplement to, and not a replacement for, GAAP
financial measures. It should be noted as well that our return on capital information may be different from the return on capital computations provided by other companies. Quarterly averages used in the computation of return on capital above reflect the impact
of material acquisitions as of their acquisition date.
|
![]() 44 44 44 44 Reconciliation: Reconciliation: Net Earnings to Adjusted EBITDA Net Earnings to Adjusted EBITDA The Company believes this presentation of adjusted EBITDA helps investors better assess
earnings quality. Non-GAAP numbers should be read in conjunction with
GAAP financial measures, as non-GAAP metrics are merely a supplement to, and not a replacement for, GAAP financial measures. It should be noted as well that our adjusted EBITDA metric may be different from adjusted EBITDA metrics provided by other companies. 12 Months Ended 31 December 12 Months Ended 31 December 2009 2001 Net earnings (loss) $213 ($18) Cumulative effect of change in accounting principle 0 59 Earnings before the cummulative effect of a change in accounting principle $213 $41 Plus: Income taxes $136 $26 Equity in earnings of unconsolidated affiliates 0 (3) Interest expense, net 70 48 Discount on securitization of trade receivables 6 5 Loss on the extinguishment of debt 9 0 Other (income) expense, net (1) (1) Depreciation 210 62 Amortization 22 12 Multi-employer pension plan withdrawal charge 7 0 Adjusted EBITDA $672 $190 |
![]() 45 45 45 45 45 45 Reconciliation: Diluted Earnings per Share Reconciliation: Diluted Earnings per Share 2009 2001 Net earnings (loss) per diluted share $2.56 ($0.26) Add: Cumulative effect per diluted share of change in accounting principle - 0.85 Earnings per diluted share before cumulative effect of change in accounting principle $2.56 $0.59 Twelve Months Ended December 31, |
![]() 46 46 46 46 Reconciliations: Reconciliations: Quarterly Adjusted EBITDA and Adjusted EPS Quarterly Adjusted EBITDA and Adjusted EPS Adjusted EBITDA ($ in millions) 1Q09 2Q09 3Q09 4Q09 1Q10 2Q10 3Q10 Operating Income $ 135 $ 145 131 $ 115 $ 108 $ 110 $ 100 $ Plus: Depreciation 49 49 50 51 52 53 54 Amortization 5 6 5 6 5 5 6 Multi-employer pension plan withdrawal charge - - - - - 2 5 Adjusted EBITDA $ 189 $ 200 $ 186 $ 172 $ 165 $ 170 $ 165 Fiscal Quarters The Company believes this presentation of Adjusted EBITDA helps investors better assess
earnings quality. Adjusted EPS 1Q09 2Q09 3Q09 4Q09 1Q10 2Q10 3Q10 Earnings per diluted share $ 0.81 $ 0.86 $ 0.76 $ 0.68 $ 0.66 $ 0.65 $ 0.56 Plus: Debt extinguishment charge - - - - - 0.02 0.05 Multi-employer pension plan withdrawal charge - - - - - 0.01 0.04 Adjusted earnings per diluted share 0.81 $ 0.86 $ 0.76 $ 0.68 $ 0.66 $ 0.68 $ 0.65 $ Fiscal Quarters The Company believes that adjusted earnings per diluted share provides investors
meaningful insight into the Company's earnings performance without the impact of debt extinguishment and multi-employer pension plan withdrawal charges. Non-GAAP numbers should be read in conjunction with GAAP financial measures, as non-GAAP metrics are merely a
supplement to, and not a replacement for, GAAP financial measures.
It should be noted as well that our adjusted earnings per diluted share metric may
be different from adjusted earnings per diluted share metrics provided by
other companies. |
![]() 47 47 Reconciliations: Adjusted EPS FY06-FY09 Reconciliations: Adjusted EPS FY06-FY09 Reconciliation of Adjusted Earnings per Share (EPS) Years Ended March 31, 2006 2007 2008 2009 EPS from continuing operations 1.62 $ 1.92 $ 2.66 $ 3.12 $ Debt extinguishment charge - 0.10 - - Stock-based compensation (1) (0.10) - - - Hurricane-related losses 0.02 - - - National Welders conversion charge - 0.03 - Benefit from state tax law change - (0.02) (0.01) - Adjusted EPS from continuing operations 1.54 $ 2.00 $ 2.68 $ 3.12 $ The Company believes this presentation of Adjusted EPS helps investors better assess earnings
quality. (1) The Company adopted SFAS 123R, Share-based Payments, using the modified
prospective method effective April 1, 2006. The reduction of earnings in fiscal year 2006
represents stock-based compensation expense the Company would have recognized if SFAS 123R
had been applicable in those periods. |
![]() 48 48 Reconciliation: Free Cash Flow Reconciliation: Free Cash Flow 48 48 The Company believes that free cash flow and adjusted cash from operations provide investors
meaningful insight into the Company's ability to generate cash from operations, which is
available for servicing debt obligations and for the execution of its business strategy, including acquisitions, the prepayment of debt, or to support other investing and financing activities. Non-GAAP numbers should be read in conjunction
with GAAP financial measures, as non-GAAP metrics are merely a supplement to, and
not a replacement for, GAAP financial measures. It should be noted as well that our free cash flow and adjusted cash from operations metrics may be different from free cash flow and adjusted cash from operations metrics provided by other
companies. TTM ($ in millions) 12/31/09 FY09 FY08 FY07 FY06 FY05 FY04 FY03 FY02 FY01 Net cash provided by operating activities $581 $583 $550 $326 $346 $212 $204 $187 $244 $196 Adjustments to cash provided by operating activities: Cash used (provided) by the securitization of trade receivables 92 49 (96) (20) (54) (27) (4) (25) (61) (73) Stock issued for employee stock purchase plan 16 17 14 12 11 10 7 9 7 6 Tax benefit realized from exercise of stock options 5 12 13 9 - - - - - - Adjusted cash from operations $694 $660 $482 $327 $302 $195 $207 $171 $190 $129 Capital expenditures ($261) ($352) ($267) ($238) ($209) ($168) ($94) ($68) ($58) ($66) Adjustments to capital expenditures: Proceeds from sales of plant and equipment 12 14 9 9 8 5 5 4 3 3 Operating lease buyouts 2 6 1 10 15 24 4 - - - Adjusted capital expenditures ($248) ($332) ($257) ($220) ($186) ($139) ($84) ($64) ($55) ($63) Free Cash Flow $446 $328 $225 $107 $116 $57 $123 $107 $135 $66 |
![]() 49 49 49 49 Reconciliation: Quarterly Free Cash Flow Reconciliation: Quarterly Free Cash Flow The Company believes that free cash flow and adjusted cash from operations provide
investors meaningful insight into the Company's ability to generate cash
from operations, which is available for servicing debt obligations and for the execution of its business strategy, including acquisitions, the prepayment of debt, the payment of dividends, or to support other investing and financing activities. Non-GAAP numbers should be read in conjunction with GAAP financial measures, as non-GAAP metrics are
merely a supplement to, and not a replacement for, GAAP financial
measures. It should be noted as well that our free cash flow and adjusted
cash from operations metrics may be different from free cash flow and
adjusted cash from operations metrics provided by other companies. Free Cash Flow ($ in millions) 1Q09 2Q09 3Q09 4Q09 1Q10 2Q10 3Q10 Net cash provided by operating activities 128,619 $ 141,623 $ 143,196 $ 169,329 $ 162,259 $ 137,511 $ 111,965 $ Adjustments to cash provided by operating activities: Cash used (provided) by securitization of trade receivables - - - 48,600 15,900 22,800 4,800 Stock issued for the employee stock purchase plan 3,934 4,168 4,133 4,272 3,888 3,871 3,577 Tax benefit realized from the exercise of stock options 7,280 1,174 2,076 1,316 1,334 1,387 1,103 Adjusted cash from operations 139,833 $ 146,965 $ 149,405 $ 223,517 $ 183,381 $ 165,569 $ 121,445 $ Capital expenditures (85,564) $ (99,635) $ (97,087) $ (69,626) $ (67,312) $ (64,053) $ (60,309) $ Adjustments to capital expenditures: Proceeds from sales of plant and equipment 3,329 1,483 6,786 2,762 2,510 3,185 3,194 Operating lease buyouts - 5,575 - - - - 1,687 Adjusted capital expenditures (82,235) $ (92,577) $ (90,301) $ (66,864) $ (64,802) $ (60,868) $ (55,428) $ Free Cash Flow 57,598 $ 54,388 $ 59,104 $ 156,653 $ 118,579 $ 104,701 $ 66,017 $ Fiscal Quarters |
![]() 50 50 50 50 50 50 Reconciliation: Operating Income to Adjusted EBITDA to Reconciliation: Operating Income to Adjusted EBITDA to Net Cash Provided by Operating Activities Net Cash Provided by Operating Activities FY1989 FY1990 FY1991 FY1992 FY1993 FY1994 FY1995 FY1996 FY1997 FY1998 FY1999 Operating income $15,958 $23,221 $17,286 $26,316 $34,367 $48,667 $72,600 $92,987 $80,480 $111,709 $112,607 Add: Depreciation & amortization 11,147 17,387 21,158 23,420 28,042 30,571 36,868 45,762 64,428 82,227 83,839 Adjusted EBITDA $27,105 $40,608 $38,444 $49,736 $62,409 $79,238 $109,468 $138,749 $144,908 $193,936 $196,446 (Uses)/sources of cash excluded from Adjusted EBITDA, included in Cash from Operations: Interest expense, net ($12,245) ($16,198) ($15,179) ($12,838) ($11,403) ($12,486) ($17,625) ($24,862) ($39,367) ($52,603) ($59,677) Discount on securitization of receivables - - - - - - - - - - - Current income taxes 404 1,700 (599) (3,591) (5,653) (7,838) (12,345) (17,654) (20,012) (16,502) (17,244) Other income (expense) 215 157 870 214 546 453 1,607 781 1,695 9,811 29,491 Equity in earnings of Elkem joint venture 1,415 1,435 2,009 2,019 (897) (1,258) (840) (1,428) (1,356) (1,478) (869) (Gains)/losses on divestitures - - - - - - (560) - - (1,452) (25,468) (Gain)/losses on sale of PP&E (32) 2 (715) (76) (292) (63) 110 (12) 616 (504) (222) Stock-based compensation expense - - - - - - - - - - - Income(loss) on discontinued operations - - - - - - - - 478 (635) (871) Other non-cash charges 260 308 252 250 - - - - 3,930 11,422 - Cash provided (used) by changes in assets and liabilities 4,379 702 6,712 15,968 13,608 6,752 (2,030) (6,948) (14,801) (13,548) (25,273) Net Cash Provided by Operating Activities $21,501 $28,714 $31,794 $51,682 $58,318 $64,798 $77,785 $88,626 $76,091 $128,447 $96,313 TTM FY2000 FY2001 FY2002 FY2003 FY2004 FY2005 FY2006 FY2007 FY2008 FY2009 12/31/2009 Operating income $105,461 $106,728 $124,938 $156,336 $168,544 $202,454 $268,758 $341,452 $476,146 $524,868 $440,221 Add: Depreciation & amortization 85,262 82,796 71,757 79,279 87,447 111,078 127,542 147,343 189,775 220,795 231,517 Adjusted EBITDA $190,723 $189,524 $196,695 $235,615 $255,991 $313,532 $396,300 $488,795 $665,921 $745,663 $671,738 (Uses)/sources of cash excluded from Adjusted EBITDA, included in Cash from Operations: Interest expense, net ($56,879) ($59,550) ($46,775) ($46,374) ($42,357) ($51,245) ($53,812) ($60,180) ($89,860) ($84,395) ($69,746) Discount on securitization of receivables - (1,303) (4,846) (3,326) (3,264) (4,711) (9,371) (13,630) (17,031) (10,738) (6,200) Current income taxes (16,902) (13,402) 4,546 (33,174) (24,623) (22,622) (30,718) (47,972) (69,459) (64,985) (61,399) Other income (expense) 18,625 1,324 5,987 2,132 1,472 1,129 2,462 1,601 1,507 (382) 979 Equity in earnings of Elkem joint venture - - - - - - - - - - - (Gains)/losses on divestitures (17,712) (1,173) (5,548) 241 - (360) 1,900 - - - - (Gain)/losses on sale of PP&E (915) 502 405 (257) (837) (321) (1,330) 39 714 (964) 2,058 Stock-based compensation expense - - - - - - - 15,445 16,629 20,635 23,427 Income(loss) on discontinued operations (335) (400) (3,529) (1,776) (457) 464 (1,424) - - - - Other non-cash charges 458 2,281 1,068 - - - - - - - - Cash provided (used) by changes in assets and liabilities (22,686) 78,329 95,691 33,931 17,865 (23,456) 42,038 (57,755) 41,505 (22,067) 28,205 Net Cash Provided by Operating Activities $94,377 $196,132 $243,694 $187,012 $203,790 $212,410 $346,045 $326,343 $549,926 $582,767 $589,062 The Company believes Adjusted EBITDA provides investors meaningful insight into the
Company's ability to generate cash from operations to support required working capital, capital expenditures and financial obligations. Certain reclassifications have been made to prior period financial statements to conform
to the current presentation. |
Exhibit (a)(7)
Air Products and Chemicals, Inc. | John E. McGlade | |
7201 Hamilton Boulevard | Chairman, President, and | |
Allentown, PA 18195-1501 | Chief Executive Officer | |
Tel 610-481-6597 | ||
Fax 610-706-5310 | ||
E-mail mcgladje@airproducts.com |
Via FedEx
20 November 2009
Mr. Peter McCausland
Chairman, President and CEO
Airgas, Inc.
259 N. Radnor-Chester Rd., Suite 100
Radnor, PA 19087-5283
Dear Peter:
I appreciate the several opportunities we have taken to meet and discuss Air Products’ strong interest in acquiring Airgas. I have further reviewed this interest with my Board of Directors this week and, with the full support of the Board, wanted to formalize our offer to acquire all of Airgas’ outstanding shares for $60 per share, equivalent to 0.7296 shares of Air Products’ common stock based on closing prices as of November 19, 2009. This offer provides your shareholders a generous premium over Airgas’ current market value, the potential for tax advantage, and a substantial equity interest in the combined company with access to accelerated future growth and value appreciation. Similar to other recent all-stock transactions, we also expect to buy back a substantial number of shares post-closing of the transaction.
As we have previously discussed, this combination presents compelling industrial and strategic logic. Specifically, the combined company (i) would create a leading industrial gas company with world-class scale and capability in all three modes of supply (packaged gas, liquid bulk, tonnage), (ii) would attain a lower cost structure than either of our companies could achieve individually, and (iii) as a consequence, would be positioned to grow faster both in the U.S. and internationally than either of us might achieve separately.
This offer is based on a careful review of publicly available information and represents full and fair value. Nonetheless, we welcome the opportunity to identify incremental value above and beyond what we have offered and are prepared to engage with you promptly to better understand the sources of that value and how best to share the value between our respective shareholders. To that end, we and our advisors request a meeting with you and your advisors as
Mr. Peter McCausland | -2- | 20 November 2009 |
soon as possible, both to explore such additional sources of value and to move expeditiously towards consummating a transaction.
We look forward to a formal response from you and to further discussion regarding our proposal. In the meantime, if you would like to discuss any aspect of our proposal, please feel free to call me at 610-481-6597.
Very truly yours, |
![]() |
Exhibit (a)(8)
Air Products and Chemicals, Inc. |
John E. McGlade | |||
7201 Hamilton Boulevard | Chairman, President and | |||
Allentown, PA 18195-1501 | Chief Executive Officer | |||
Tel 610-481-6597 | ||||
Fax 610-706-5310 | 17 December 2009 | |||
E-mail mcgladje@airproducts.com |
Mr. Peter McCausland
Chairman, President and CEO
Airgas, Inc.
259 North Radnor-Chester Road, Suite 100
Radnor, PA 19087-5283
Dear Peter:
I am writing in response to your letter of December 8th, and to reiterate Air Products continued strong interest in a business combination with Airgas. We believe this combination has a very compelling strategic and industrial logic that will create substantial value for our respective shareholders and excellent opportunities for the employees and customers of both companies.
In a demonstration of our good faith and to facilitate productive discussions between the two companies, Air Products hereby increases its offer to acquire all of Airgas outstanding shares to $62 per Airgas share. This represents a material increase of $2 per share over our previous offer of $60 per share and a 33% premium to Airgas closing price of $46.70 on December 17, 2009.
In your letter, you expressed the view that Air Products is using an unattractive currency for this transaction. While we disagree with this view, our original proposal of an all-stock deal was designed to allow the Airgas shareholders the opportunity to participate fully in the expected appreciation of Air Products stock as the synergies of the combined companies are realized. It also provided the potential for a tax benefit by deferring capital gains. As you find an all-stock transaction unattractive, we are prepared to revise our offer to your shareholders by providing a substantial portion of the purchase price in cash. Specifically, we are prepared to offer cash for up to half of the $62 per Airgas share we are offering. As I related to you in our previous conversations, it has always been Air Products intention to buy back a substantial number of shares after closing the transaction. We are committed to a robust capital structure that will ensure the combined entity has a stronger financial profile than Airgas has today at a time when access to capital remains crucial to operations and a concern of many shareholders.
You also raised the issue of the relative stock appreciation of our respective companies, mentioning that the Airgas share price appreciation has been significantly greater than that of Air Products. While stock price appreciation is
Mr. Peter McCausland
17 December 2009
Page - 2 -
one measure of shareholder value, dividends are another important measure that must be considered as they return cash directly to the shareholders. Air Products has consistently outperformed Airgas in dividend yield. We believe the appropriate measure to consider is total shareholder return, combining both stock price appreciation and dividends paid. On this basis, the table below demonstrates that Air Products has consistently outperformed Airgas over recent history.
Annual Total Shareholder Return (Year End ) 30 November | ||||
One Year | Three Years | |||
ARG |
32% | 4% | ||
APD |
79% | 9% |
We believe we can build on the successful returns we have provided to our respective shareholders by combining our two companies which will unlock significant synergies and create substantial additional shareholder value.
With respect to your comments on Air Products’ ability to manage a packaged gas business, you certainly are aware we have a substantial business and set of capabilities in Europe and Asia. To your point on our decision to sell our U.S. business to you in 2002, I believe you know that was based on our belief that to be successful in this business one needs to have significant size and scale; something our U.S. packaged gas business lacked at that time. Airgas, over the last number of years, has created through acquisitions a very successful business in the United States that today does have the necessary size and scale. That is why we are so enthusiastic about a combination of Air Products and Airgas. The collective management team would possess world-class expertise across all modes of supply that we believe would create the premier industrial gas company in the world.
You also raised concerns about potential regulatory issues. As I outlined at our initial meeting, we have carefully studied this issue and, as I recall you agreed during the meeting, there are remedies that are limited in nature, not material to the proposed transaction and unlikely to slow the process in any way. We are willing to take the necessary steps to address these potential issues and believe there are a number of credible buyers for the businesses and facilities that would be in question. We also do not believe the BOC transaction you referenced has any relevance to this proposed combination. The BOC concerns were focused on the bulk and tonnage businesses resulting in substantially greater overlap with Air Products. We would be happy to share the results of our analysis and discuss our findings in this area when we meet.
The last point you raised in your letter was a concern that our legal advisor, Cravath, Swaine and Moore, and our financial advisor, JPMorgan, allegedly have
Mr. Peter McCausland
17 December 2009
Page - 3 -
conflicts of interest preventing them from representing us in this matter. We take conflicts very seriously and accordingly made certain before we hired these firms as our advisors that they had no conflicts in their ability to advise Air Products in a merger with Airgas.
Peter, I am disappointed that your letter took the extreme position of not engaging further with us to explore the value that this combination could create for both sets of shareholders, employees and customers. This is especially hard to understand since, in our meeting on 15 October, you acknowledged that a combination of our two companies had compelling strategic and industrial logic.
We continue to believe that the industrial logic is extremely compelling and would result in significant value creation. This combination would create the largest industrial gas company in North America and the third largest industrial gas company in the world, the result being a geographically diverse, full service business with world class skills in all three modes of supply packaged gases, liquid bulk and tonnage. This transaction provides a unique combination of complementary skills and strengths that we are certain will result in greater value than any other transaction that is possible in the industrial gas industry.
In that regard, Air Products brings the following strengths to a combination with Airgas:
| An extensive global presence and infrastructure that will accelerate the expansion of Airgas’ packaged gas business outside of the United States. |
| A liquid bulk plant network both within and outside of the United States that can readily supply the packaged gas business with its principal products. |
| World class industrial gas application skills that will enable the growth and expansion of the customer base. |
| A significant European packaged gas business and a growing Asian packaged gas business that can benefit from the extensive knowledge of Airgas’ operations. |
| An extensive tonnage gas business around the world that will support growth with a low-cost source of liquid gas supply. |
| Extensive engineering skills that can execute capital projects on time, on budget, and at a low cost from all three regions. |
| Extensive process plant operation skills that support a low-cost position underpinning product supply. |
| Over seven years of SAP experience, with a single instance installed including within our packaged gases. |
Mr. Peter McCausland
17 December 2009
Page - 4 -
We believe the strengths Airgas brings to this transaction are:
| The most extensive sales coverage of any industrial gas company in the United States which will enable us to sell our applications more broadly to a wider customer base. |
| Extensive packaged gas skills that, when combined with Air Products’ expertise, will create the best set of packaged gas skills of any industrial gas company. |
| Extensive distribution expertise across the packaged gas and micro bulk landscape. |
| A complementary supply source for our liquid bulk business, including additional distribution points that will enable us to grow faster and achieve lower costs. |
| Extensive acquisition execution and integration skills that will enable us to grow our packaged gas business worldwide by effectively buying smaller distributors. |
The value of these combined strengths results in improved costs, margins, returns, growth and cash generation. We believe the combined company should be able to achieve 1% to 2% greater growth than the respective companies could do individually. We also see an entity with a lower cost structure, thereby enabling us to achieve this growth at superior returns. The integrated platform of the new company will allow it to capture economies of scale from its extensive engineering, operations and back office capabilities, with a much greater customer reach and ability to provide better overall service. The increased cash flow and capital access also allow the company to fund greater growth opportunities globally. All of this should result in a higher valuation multiple than either company has achieved on a standalone basis.
In discussions we have had, you said you believe the timing of this transaction is premature. We do not share that belief. We believe the timing for this combination is excellent. The economy is just beginning to emerge from recession which will enable us to take advantage of economies of scale and to achieve the synergies more easily. Airgas is in its initial stages of implementing SAP where Air Products’ expertise could greatly facilitate the implementation of SAP. Finally, you have told me of your international growth aspirations which our global infrastructure would enable to happen faster and better. Airgas would spend significant time and cost trying to develop that infrastructure on its own. It makes no sense to do that when we have the infrastructure available to you. We believe waiting will only erode these advantages and may make the combination less attractive in the future.
To reiterate, we are fully committed to proceeding with this transaction and we very much want to move forward with you to explore the combination. This is a
Mr. Peter McCausland
17 December 2009
Page - 5 -
serious and well thought out proposal. If you believe there is incremental value above and beyond our increased offer, we stand willing to listen and to understand your points on value with a view to sharing increased value appropriately with the Airgas shareholders. It is our opinion, however, that the benefits of a letter writing campaign between the two companies have been exhausted. Our teams should meet at this point in the process to move forward in a manner that best serves the interest of our respective shareholders. To that end, we and our advisors are formally requesting to meet with you and your advisors as soon as possible to explore additional sources of value in Airgas and to move expeditiously to consummate a transaction. We believe a consensual discussion of a combination among our two teams will permit the parties to control the process in a manner that advantages both parties’ shareholders.
We expect you will review this proposal with your Board of Directors and any special committees of your Board as soon as possible, and look forward to serious discussions regarding our proposal between the companies and our advisors. If you would like to discuss any aspect of this proposal, please contact me directly.
Very truly yours, |
/s/ John E. McGlade |
John E. McGlade |
Chairman, President and Chief Executive Officer |
c: | Douglas Braunstein |
Rodney Miller
George Sard
John D. Stanley, Esq.
James C. Woolery, Esq.
Exhibit (a)(9)
Air Products and Chemicals, Inc. | John E. McGlade | |
7201 Hamilton Boulevard | Chairman, President and | |
Allentown, PA 18195-1501 | Chief Executive Officer | |
Tel (610) 481-6597 | ||
Fax (610) 706-5310 | ||
E-mail mcgladje@airproducts.com |
Via: | Email / peter.mccausland@airgas.com |
and Fax / (610) 687-1058
4 February 2010
Mr. Peter McCausland
Chairman, President and CEO
Airgas, Inc.
259 North Radnor-Chester Road, Suite 100
Radnor, PA 19087-5283
Dear Peter:
As you know, we have been trying for the last four months to engage Airgas in friendly discussions regarding a business combination. We are deeply disappointed that you and your board have rejected out of hand two written offers providing your shareholders substantial premiums. In our prior correspondence, we clearly and repeatedly stated our flexibility as to both value and form of consideration, yet you have continued to refuse even to discuss our offers. Your unwillingness to engage has delayed the ability of your shareholders to receive a substantial premium. We remain committed to completing this transaction, and we have therefore decided to inform your shareholders of our offer to expedite the process.
Air Products is prepared to proceed with a fully financed, all-cash offer for all Airgas shares at $60.00 per share, which reflects a premium of 38% to Airgas closing price today of $43.53 and 18% above its 52-week high. In addition to a substantial premium, Airgas shareholders will benefit from immediate liquidity in an uncertain economic environment through an offer which we believe fully values Airgas complementary capabilities and long-term growth prospects.
Bringing together our complementary skills and strengths will create one of the worlds leading integrated industrial gas companies. Combining Air Products global leadership in liquid bulk and tonnage gases with Airgas leadership in U.S. packaged gases will create the largest industrial gas company in North America and one of the largest globally a leader with distinctive strengths and world-class competencies across all distribution channels and geographies. While we have a strong and profitable packaged gas business in Europe and other key international markets, we do not have a position in the U.S. packaged gas business where Airgas is the market leader. As part of this uniquely compelling combination, Airgas would be well positioned to achieve higher growth than it could achieve on a stand-alone basis.
We do not believe there are any significant financial or regulatory impediments to your shareholders timely realization of this substantial cash premium. We have secured committed financing from J.P. Morgan to complete the offer and are committed to maintaining a robust capital structure. We have also thoroughly considered the regulatory issues related to this combination and are prepared to make appropriate divestitures, none of which we expect to be material.
Mr. Peter McCausland | -2- | 4 February 2010 |
The strategic and industrial logic of this combination is clear, and we are confident that an Air Products/Airgas combination would create greater value than Airgas or Air Products could each achieve on its own. There are many advantages to consummating this combination now, including:
| The opportunity to improve growth, returns and cash generation. |
| Substantial cost synergies, which are expected to yield savings of $250 million annually when fully realized, primarily related to reductions in overhead and public company costs, supply chain efficiencies, and better utilization of infrastructure. |
| The ability to leverage Airgas extensive U.S. sales force and packaged gases skills, and to build on the foundation of Air Products global presence and infrastructure, to accelerate growth both domestically and internationally. |
| An integrated platform better able to capture economies of scale from extensive engineering, operations and back office capabilities with a much greater reach and ability to provide better overall customer service. |
| Air Products presence in all of the worlds key industrial gas markets, increased cash flow and greater access to capital would allow Airgas to achieve international expansion far faster and at a much lower cost, while accelerating its growth through acquisitions. |
We believe the timing for this combination is ideal. The economy is just beginning to emerge from recession, and together we would be able to take full advantage of the substantial growth potential, economies of scale, and synergies unique to this transaction. You have made clear your international growth aspirations, which will require significant time and expense to build out on your own. Air Products has the global infrastructure in place that would allow you to achieve your goals faster and better. Airgas is also just in the initial stages of implementing SAP, and our demonstrated expertise in this area would greatly reduce the time, expense and disruption associated with this vital rollout.
Bringing our two companies together would also benefit employees, customers and the communities in which we operate. We highly value the talented operating team at Airgas, which would benefit greatly from the expanded opportunities and resources available as part of a larger and stronger global U.S. company headquartered in Pennsylvania with significantly greater long-term growth prospects than a stand-alone Airgas. Your customers would benefit from a more robust product offering from a company with expanded resources and global scope.
Peter, let me reemphasize as I have in past discussions that Air Products is fully committed to the successful completion of this compelling transaction. Your continuing refusal to engage with us will serve only to further delay your shareholders ability to receive a substantial all-cash premium. While we would strongly prefer to proceed through friendly negotiations, you should not doubt our resolve to take the necessary actions to complete this transaction. We would welcome the opportunity to meet with you or with any special committee of your independent directors which has been or will be formed to consider our offer, as well as their independent financial and legal advisors. Finally, we reiterate our willingness to reflect in our offer any incremental value you can demonstrate.
Very truly yours, |
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c: Airgas Board of Directors
Exhibit (e)(1)
Excerpts from Airgas, Inc. Definitive Proxy Statement on Schedule 14A relating to the 2009 Annual Meeting of Stockholders as filed with the Securities and Exchange Commission on July 13, 2009.
COMPENSATION OF DIRECTORS
Only directors who are not employees of Airgas receive compensation for their services as directors. Our compensation package for non-employee directors for the 2009 fiscal year was composed of cash, which consisted of an annual retainer of $25,000, plus a fee of $1,500 for each Board or committee meeting attended during the 2009 fiscal year, and stock option grants under the Airgas, Inc. 2006 Equity Incentive Plan, referred to in this proxy statement as the 2006 Equity Plan. The cash component of the directors compensation is set by the Governance and Compensation Committee. We also reimburse our non-employee directors for their out-of-pocket expenses incurred in connection with attendance at Board, committee and stockholder meetings, and other company business. Non-employee directors are eligible to participate in the 2006 Equity Plan and the Airgas, Inc. Deferred Compensation Plan II, referred to in this proxy statement as the Deferred Compensation Plan II, and some of our directors have participated in the Airgas, Inc. Deferred Compensation Plan I, referred to in the proxy statement as the Deferred Compensation Plan I, and more fully described under the heading Retirement and Other Plans and Programs found on page 25 of this proxy statement.
In order to closely align the interests of directors with those of our stockholders, a majority of the directors compensation is in the form of stock options. The number of options granted is determined annually by the Governance and Compensation Committee. The exercise price of each option is equal to the closing price of our common stock on the date of grant and each option is exercisable immediately. Options granted to non-employee directors during the 2009, 2008 and 2007 fiscal years expire after eight years and options granted to non-employee directors in prior fiscal years expire after 10 years. On August 5, 2008, each Board member serving on the Board as of that date was granted options to acquire 6,500 shares of our common stock with an exercise price of $57.49 per share.
The Chairmen of the Governance and Compensation Committee and the Finance Committee also receive an additional $3,000 annual retainer, and the Chairman of the Audit Committee receives an additional $5,000 annual retainer.
Each year, non-employee directors may elect to defer, under the Deferred Compensation Plan II, all or a portion of his or her directors fees. The amount deferred is credited to an account that tracks valuation funds selected by the participant from a family of funds under the plan, one of which tracks Airgas common stock. The balance is paid at the election of the director within the alternatives offered under the plan, and the unpaid account balance accrues interest based on earnings in the selected valuation funds. In addition, one of our current directors maintains a balance in the Deferred Compensation Plan I.
We believe that directors should be stockholders and should have a financial stake in the company. Directors are expected to maintain, within five years of joining our Board, at least 25,000 shares of Airgas common stock (which may include up to 22,500 shares under options) or shares having a value equal to five times the directors annual Board retainer (which may include in-the-money options). Compliance with these guidelines is expected by November 11, 2013 for all current directors, and all but one director satisfy these ownership requirements at the present time.
Director Compensation Table
The following table shows the compensation earned by each non-employee director in the 2009 fiscal year.
Director |
Fees Earned or Paid in Cash ($)(1) |
Option Awards ($)(2) |
All Other Compensation ($) |
Total ($) | ||||
William O. Albertini(5) |
7,375 | -0- | -0- | 7,375 | ||||
W. Thacher Brown(3) |
49,000 | 114,830 | -0- | 163,830 | ||||
James W. Hovey(3) |
40,000 | 114,830 | -0- | 154,830 | ||||
Richard C. Ill(3) |
41,500 | 114,830 | -0- | 156,330 | ||||
Paula A. Sneed(3) |
44,500 | 114,830 | -0- | 159,330 | ||||
David M. Stout(3) |
41,500 | 114,830 | -0- | 156,330 | ||||
Lee M. Thomas(3) |
44,500 | 114,830 | -0- | 159,330 | ||||
John C. van Roden, Jr.(3) |
54,500 | 114,830 | -0- | 169,330 | ||||
Ellen C. Wolf(4) |
15,743 | 52,784 | -0- | 68,527 |
(1) | Consists of the aggregate amount of all fees earned or paid in cash for services as a director, consisting of annual Board and committee chair retainers and Board and committee meeting fees earned by non-employee directors, as described above. During the 2009 fiscal year, Ms. Sneed chose to defer a portion of her cash compensation as director under the Deferred Compensation Plan II. |
(2) | The amounts shown reflect the dollar amount of options recognized for financial statement reporting purposes for the fiscal year ended March 31, 2009 for the stock options granted to the non-employee directors. The compensation expense reflected in the table is the same as the grant date fair value pursuant to Statement of Financial Accounting Standards No. 123R, Share-based Payment, or SFAS 123R. The fair value was estimated using the Black-Scholes option pricing model in accordance with SFAS 123R. The actual value of the options, if any, will depend on the extent that the market value of our common stock at exercise is greater than the exercise price of the option. Each non-employee director on the Board at the time was granted an option under the 2006 Equity Plan to purchase 6,500 shares on August 5, 2008 with an exercise price of $57.49 per share. Ms. Wolf was granted an option under the 2006 Equity Plan to purchase 4,773 shares on November 11, 2008 with an exercise price of $35.90 per share. As of March 31, 2009, the following non-employee directors held options to purchase the following number of shares: Mr. Brown, 59,500 shares; Mr. Hovey, 59,500 shares; Mr. Ill, 34,000 shares; Ms. Sneed, 59,500 shares; Mr. Stout, 72,000 shares; Mr. Thomas, 50,500 shares; Mr. van Roden, 18,540 shares and Ms. Wolf, 4,773 shares. |
(3) | The material inputs and assumptions incorporated into the model include the exercise price of the option, the estimated term of the option until exercise, an interest rate factor of 3.2% based on the U.S. Treasury rate over the estimated term of the option until exercise, a volatility factor of 29.5% based on the standard deviation of the price of our common stock and a dividend yield of 0.85% based on the annualized dividend rate per share of our common stock. |
(4) | The material inputs and assumptions incorporated into the model include the exercise price of the option, the estimated term of the option until exercise, an interest rate factor of 2.4% based on the U.S. Treasury rate over the estimated term of the option until exercise, a volatility factor of 34.8% based on the standard deviation of the price of our common stock and a dividend yield of 1.54% based on the annualized dividend rate per share of our common stock. |
(5) | William O. Albertini served as a member of the Airgas Board of Directors until his death in June 2008. |
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COMPENSATION DISCUSSION AND ANALYSIS
Overview of Compensation Program
The Governance and Compensation Committee of our Board of Directors has responsibility for establishing and implementing our compensation philosophy, and for continually monitoring our adherence to that philosophy. The Committee reviews and approves compensation levels for all Airgas executive officers as well as all of our compensation, retirement, perquisite and insured benefit programs, including programs applicable to our senior management team, which includes our named executive officers. With respect to Peter McCausland, our Chairman, President and Chief Executive Officer, the Committee annually evaluates his accomplishments and performance against established objectives and sets his compensation level based upon such evaluation. The Committee may choose to award additional annual cash incentive compensation to our CEO based upon the Committees subjective evaluation of his performance. These functions are set forth in the Committees Charter, which appears on our website (www.airgas.com) and is reviewed annually by the Committee. The Committee seeks to ensure that the total compensation paid to our executives is fair, reasonable and competitive and consistent with our compensation philosophy. Generally, the types of compensation and benefits provided to our named executive officers are similar to those provided to other Airgas executives.
The following individuals, included in the Summary Compensation Table for the 2009 Fiscal Year found on page 29 of this proxy statement, are referred to as our named executive officers throughout this proxy statement:
| Peter McCausland, Chairman, President and Chief Executive Officer; |
| Leslie J. Graff, Senior Vice President, Corporate Development; |
| Robert M. McLaughlin, Senior Vice President and Chief Financial Officer; |
| Michael L. Molinini, Executive Vice President and Chief Operating Officer; and |
| B. Shaun Powers, President, Eastern Division. |
Compensation Philosophy and Objectives
Our goal is to maintain compensation and benefit plans that will allow us to attract and retain highly qualified employees while motivating and rewarding performance that will lead to sustained increases in the value of our stockholders investment in Airgas. We also seek to align the interests of our named executive officers with those of our investors by evaluating performance primarily on the basis of key financial measures. Given these goals, our compensation philosophy has been, and continues to be, to emphasize pay for performance programs designed to reward superior financial performance and long-term enhancement of stockholder value, while maintaining competitive base pay, retirement, healthcare and other fixed compensation programs. We set base salary, annual cash incentive opportunities and long-term equity incentive opportunities to reflect an individual executives level of responsibility and performance against established objectives, and we rely on our judgment and discretion after reviewing Airgas performance and evaluating the executives performance.
Role of the Committee and Executive Officers in Compensation Decisions
The Committee oversees the design, development and implementation of the compensation program for the CEO and the other executives, including the named executive officers. The Committee evaluates the performance of the CEO and determines the CEOs compensation in light of the goals and objectives of the compensation program. Mr. McCausland and Mr. Molinini, as appropriate, assess the performance of our other executives, including the other named executive officers, and the Committee approves their compensation based on recommendations from Mr. McCausland. The Committee did not seek advice or assistance from compensation consultants during the 2009 fiscal year.
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The Committees work is accomplished through a series of meetings, following a regular calendar schedule, to ensure that all major elements of compensation are addressed and compensation and benefit programs are properly designed, implemented and monitored. Occasionally, special meetings are called to address matters that require attention outside of the regular compensation cycle. Working with the Committee Chair, Lee M. Thomas, Robert H. Young, Jr., our Senior Vice President and General Counsel, and Dwight T. Wilson, our Senior Vice President, Human Resources, prepare an agenda and supporting materials for each meeting, which are provided to Committee members between two-to-four days in advance of the meeting. Mr. Wilson and Mr. Young, along with Mr. McCausland, generally attend Committee meetings by invitation, but are excused for executive sessions. As requested, Mr. McCausland, Mr. Young and Mr. Wilson offer their opinions and recommendations to the Committee. The Committee may invite other members of management to attend meetings (as necessary) to discuss items within their specific areas of responsibility, although they do not play a role in their own compensation determination, other than discussing individual performance objectives with the CEO.
Setting Executive Compensation
Elements of Executive Compensation
Consistent with our compensation philosophy, the Committee has structured our annual and long-term executive compensation programs to motivate executives to achieve the business goals we set, and these programs reward the executives for achieving and exceeding those goals. The key elements of our executive compensation program are:
| base salary; |
| annual cash incentive awards; and |
| long-term incentive compensation. |
These key elements are addressed separately below. In determining each component of compensation, the Committee takes into account all other elements of an executives compensation package.
Our compensation programs for executives, and in particular for our named executive officers, are designed to reflect their success, both individually and as a management team, in attaining key objectives. For example, 80% to 85% of our annual cash incentive payments are calculated based on Airgas performance with regard to certain key financial metrics versus budgeted levels and 15% to 20% of those payments are calculated based on an executives attainment of strategic goals, individual performance and contributions. There are two levels of approval for each discretionary award and the Committee has final approval for awards to executive officers. Our equity-based program is intended to reward the management teams success in delivering value to our stockholders. Specifically, stock option grants reward our executives for their contributions that result in increases in our stock price over time. In each case, we strive to ensure that our compensation program provides rewards based on meaningful measures of performance, and the Committee makes adjustments to the incentive programs each year in light of past experience, changes in strategic focus, regulatory requirements and other relevant factors.
Benchmarking Compensation Against Our Peers
Periodically, Mr. Wilson provides the Committee with data comparing our elements of compensation and levels of executive compensation against relevant companies in the chemicals and wholesale distribution industries and comparably-sized companies in other industries, including a comparison of compensation elements of individual executives where the positions are sufficiently similar to make comparison meaningful. Currently, the peer group for compensation comparisons is Albemarle Corporation, Cabot Corporation, CF Industries Holdings, Inc., Cytec Industries, Inc., Davita Inc., Ecolab Inc., Fastenal Company, Ferro Corporation, FMC Corporation, Georgia Gulf Corporation, International Flavors and Fragrances, Inc., Lubrizol Corporation, Nalco Holding Company, Patterson Companies, Inc., PolyOne Corporation, Rockwood Holdings, Inc., RPM International, Inc., Scotts Miracle-Gro Company, Sigma-Aldrich Corporation, Valspar Corporation, WR Grace & Company, Wesco International, Inc. and Westlake Chemical Corporation. The peer group includes companies in the S&P MidCap 400 index, including
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companies in the S&P MidCap 400 Chemicals industry group, plus other companies that are similar in size to Airgas. The peer group includes companies outside of our industry because the Committee believes that Airgas is similar in certain respects to such companies.
The most recent benchmarking of executive compensation levels was performed by Mr. Wilson during the 2006 fiscal year. The benchmarking compared compensation of our named executive officers to the 25th percentile and 50th percentile base salary, total cash compensation and total direct compensation of similar positions in the peer group companies. Direct compensation adds the Black-Scholes value of stock option grants to the total cash compensation. We believe that periodic reviews of outside compensation practices are appropriate to determine if our compensation levels and mix of components require rebalancing.
Given the nature of our businesses, we compete with companies across the two broad industry groups mentioned above for top executive-level talent. As such, the Committee generally expects, over time, to set total compensation levels for our executives approximating the median level of compensation paid to similarly situated executives of chemicals and wholesale distribution companies of comparable size to Airgas. Variations from this general philosophy may occur based upon the expertise and experience level of a given executive, as well as individual, company and market factors.
Compensation of our Chief Executive Officer
The compensation of our CEO is reviewed by our Governance and Compensation Committee and our Board and determined solely by our Governance and Compensation Committee. The compensation of our CEO is based on factors similar to those utilized for the other named executive officers, but also includes consideration for the overall responsibilities of our CEO for achievement of our operational goals, as well as his unique role as primary architect of our strategic vision. The specific elements of compensation for our CEO and any differences in his compensation as compared to the other named executive officers are discussed below.
Components of Executive Compensation for the 2009 Fiscal Year
Given our philosophy of pay for performance, a significant percentage of total compensation is allocated to performance-based incentives. As a general matter, we recognize that, as employees progress to higher levels within our organization, they assume more responsibility for our overall performance and returns to stockholders. Consequently, we seek to link greater portions of executive compensation to criteria and metrics that are tied to the creation of stockholder value. Looking at the named executive officers as a group, 72% of their target total compensation (including the Black-Scholes value of stock option grants) for the 2009 fiscal year was allocated to at risk components consisting of annual cash incentives and stock options, with the remaining 28% allocated to base salary. Our policy for allocating value between long-term and currently-paid compensation is to ensure adequate base compensation to attract and retain personnel, while providing strong incentives for our executives to maintain an ownership mentality, focusing them on maximizing long-term value creation for them and our stockholders.
Combined target cash and non-cash incentive compensation for named executive officers for the 2009 fiscal year ranged from 58% to 79% of total target compensation. Actual cash incentive compensation ranged from 11% to 17% and non-cash incentive compensation ranged from 42% to 65% of total compensation for the named executive officers for the 2009 fiscal year. We believe that these mixes are both competitive within the marketplace and consistent with our stated compensation philosophy.
For Mr. McCausland, 79% of his targeted total compensation for the 2009 fiscal year was allocated to at risk compensation. His actual cash incentive compensation was 17% and his non-cash incentive compensation was 61% of his total compensation. The Committee believes that the relatively larger component of his compensation that is at risk reflects the significant difference in Mr. McCauslands overall responsibilities, which could result in higher compensation for Mr. McCausland than for our other named executive officers.
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Base Salary
Base salary is the component of compensation that is fixed and intended to compensate our executives, based on their experience, expertise, job responsibilities and the performance of their responsibilities during the fiscal year. While base salaries must be competitive in order to recruit and retain qualified executives, we do not generally seek to pay base salaries at levels exceeding the market median among comparably-sized companies in all industries. Our review of base salaries paid to our executives peers indicate that the base salaries of our named executive officers are at or below the median for comparably-sized general industry companies, chemical industry companies and wholesale distribution companies. Consistent with our compensation philosophy that we offer compensation based on superior performance, we strive to use incentive compensation, rather than base salary, to provide executives with an above-market compensation opportunity if we exceed budgeted financial performance metrics and drive increases in stockholder value.
Each year, our Governance and Compensation Committee reviews the base salary of Mr. McCausland and all other executive officers. In making adjustments to base salary levels, the Committee considers:
| the executives level of responsibilities; |
| the executives experience and breadth of knowledge; |
| the executives individual performance as assessed through annual performance reviews; |
| the executives role in management continuity and development plans; |
| internal equity factors, meaning relative pay differences for different jobs; and |
| on a periodic basis, benchmark data on the compensation practices of peer companies, from available salary survey data and as reported in public company proxy statements. |
The normal interval between salary reviews for most executive officers and most other employees is 12 months, usually completed in the quarter following the fiscal-year end. Mr. McCauslands salary increases have been less frequent, as the Committee prefers to move his salary in larger increments. Mr. McCauslands base salary was increased by 10% during the 2009 fiscal year. Mr. Molininis base salary was increased 53.5% during the 2009 fiscal year, to raise his compensation package to a more competitive level relative to chief operating officers in peer companies. Messrs. Graff, McLaughlin, Molinini and Powers each received a merit pay increase for the 2009 fiscal year, averaging 3.5%, plus Mr. Molinini received an additional increase in December 2008. These increases were approved by the Committee in May 2008, other than Mr. Molininis additional increase, which was approved by the Committee in November 2008.
Annual Cash Incentive Awards
Annual cash incentive awards for our executive officers are intended to promote the achievement of our corporate and division financial performance goals, as well as individual performance goals. Each of our named executive officers participated in our Executive Bonus Plan. In addition, depending upon the named executive officers position and responsibilities with Airgas, each named executive officer participated in one of the following Airgas annual cash incentive plans for which executive officers and other management employees may be eligible, which plans, together with our Executive Bonus Plan, are referred to in this proxy statement as our Management Bonus Plans:
| the Fiscal Year 2009 Management Bonus Plan for Corporate Employees, in which Messrs. McCausland, Graff, McLaughlin and Molinini participated during the 2009 fiscal year, is available to all management-level employees who have corporate-wide responsibility; and |
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| the Fiscal Year 2009 Management Bonus Plan for Operating Company Management, in which Mr. Powers (Division President) participated during the 2009 fiscal year, is available to all management-level employees who work within our operating companies. |
The overall cash incentive award paid to each executive officer is composed of (1) a cash incentive award under our Executive Bonus Plan that is based on corporate performance goals and (2) a cash incentive award under the applicable Management Bonus Plan that is based on strategic and individual performance goals. In addition, the Committee may, in its discretion, grant to any executive officer a cash award outside of any of our plans described above.
Corporate Performance Goals. Within 90 days after the beginning of each fiscal year, the Committee (1) reviews our performance during the prior fiscal year, (2) analyzes anticipated value drivers in our industry and within our company and proposed performance objectives for the current fiscal year and (3) determines the specific performance criteria for each executive officer and the metrics that will be used for the current fiscal year under our Executive Bonus Plan, based on such review and analysis. Examples of performance criteria that the Committee may consider are cash flow growth, overall sales growth, sales growth for specific products or markets, margin improvements and return on capital, or ROC. After selecting the performance criteria, the Committee establishes performance metrics within the selected criteria and assigns to each of our executive officers a target award. The target award, expressed as a percentage of the executive officers base salary for the fiscal year, is determined based upon the executives position in the company.
In addition, each of the pre-determined performance criteria (e.g., ROC) is weighted by the Committee, in its judgment, to reflect its relative importance, and becomes a separate component of the executive officers cash incentive award. The Committee also sets a target payout, expressed as a percentage, for each component, which may vary depending upon our actual performance with respect to the component against the pre-determined performance metrics. Our executive officers will receive cash incentive awards under the Executive Bonus Plan if, at the end of the fiscal year, Airgas has achieved the performance metrics established within the criteria selected by the Committee at the beginning of the fiscal year. Actual cash award payments will vary based upon Airgas level of achievement of the pre-determined corporate performance metrics and the different weights assigned to each performance criteria component for each executive officer.
The annual cash incentive award targets are set for each executive officer as a percentage of base salary with regard to the relative responsibilities of each executive officer and with regard to the total cash compensation opportunity for comparable positions in peer companies. For the 2009 fiscal year, Mr. McCauslands target for his annual cash incentive award was 100% of his annual base salary rate at the end of the fiscal year. We believe that was generally comparable to the target annual cash incentive award for chief executive officers in our peer companies. Mr. Molininis target annual cash incentive award was 60% of his weighted annual base salary rate, calculated based on 2/3 of his annual base salary rate at the end of November 2008 and 1/3 of his base salary rate at the end of the fiscal year. We believe 60% of base salary was appropriate relative to 100% of base salary for Mr. McCausland considering Mr. McCauslands broader responsibilities and considering the relative annual incentive compensation awards for comparable positions in our peer companies. All other executive officers had target annual cash incentive awards set at 50% of annual base salary, which reflects their responsibilities relative to Mr. McCausland and Mr. Molinini and generally reflects the total cash compensation opportunity for the other named executive officers in our peer companies.
Earnings before interest, taxes, depreciation and amortization, or EBITDA, and ROC were chosen as the plan performance criteria for executives with corporate-wide responsibility (i.e., Messrs. McCausland, Graff, McLaughlin and Molinini). EBITDA was most heavily weighted at 70% of the annual cash incentive award target because the Committee believes that it motivates growth, gross margin performance and expense management, and because of the direct correlation of earnings performance with share valuation. ROC was weighted at 15% of the annual cash incentive award target and was intended to drive discipline around long-term capital deployment and debt reduction, also important performance measures to stockholders. The remaining 15% of the target annual cash incentive award was based on individual performance and payout was based on performance against objectives set and agreed upon in the first quarter of the fiscal year.
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For Division Presidents (i.e., Mr. Powers), in addition to the corporate performance criteria of Corporate EBITDA, additional performance criteria, including divisional EBITDA, divisional ROC and sales, volume shipped, or profit for targeted growth strategies, relating to the performance of the executives division were used. Corporate EBITDA was weighted at 10% of the annual cash incentive award and EBITDA for their respective divisions was weighted at 60% of the annual incentive award. The larger portion was based on their profit responsibility to motivate performance in their respective spheres of control, while the smaller portion recognizes their contributions to Airgas overall performance and to encourage interdivisional cooperation. ROC for their respective divisions was weighted at 10% of the target annual cash incentive award to emphasize the importance of capital management (similar to the inclusion of ROC at the corporate level). The remaining 20% of the target annual cash incentive was based on sales for targeted growth strategies to motivate focusing on opportunities that were specific to each division.
The threshold and maximum of each performance criteria of the award was determined separately. The threshold for EBITDA approximates the performance equal to the 2008 fiscal years pro forma results. For the 2009 fiscal year, the EBITDA threshold for both corporate and the divisions was 20% of the target award for achievement at 88% of budget. The EBITDA target opportunity (100%) was earned for achievement of 99% to 101% of our budget for EBITDA for the 2009 fiscal year. The maximum EBITDA award opportunity was set at 105% of EBITDA budget, which awarded 140% of the target opportunity and reflected the Committees judgment of reasonable compensation for superior performance.
The Corporate ROC target opportunity was set at achievement within plus or minus 0.2 percentage points of our budget. The threshold for ROC was set at 0.8 percentage points below our budget, which awards 50% of the target opportunity, and the maximum for ROC was set at 0.8 percentage points above our budget, which awards 130% of the target opportunity. That range was intended to recognize an adequate level of performance below budget while still improving ROC, and was intended to pay reasonable compensation above target for superior performance.
The Division ROC target opportunities were set at achievement of plus or minus 2% of Division budget. The threshold bonus opportunity for ROC was set at 90% of Division budget, which awarded 20% of award target, and the maximum was set at 107% of Division budget, which awarded 150% of award target. The Division ROC range was estimated to replicate the amount of stretch reflected in the award range for Corporate ROC.
The Corporate EBITDA target for the 2009 fiscal year was $795 million and the ROC target was 13.2%. For Mr. Powers award, the Eastern Division EBITDA target was $335.6 million and the ROC target was 13.3%. All targets reflect adjustments during the fiscal year to account for budgeted results from acquisitions completed during the year.
Individual Performance Goals. In addition to the corporate financial performance goals described above, under the Fiscal Year 2009 Management Bonus Plan for Corporate Employees, a portion of Messrs. McCauslands, Graffs, McLaughlins and Molininis annual cash incentive award is based on individual performance measured against personal objectives. The Committee established individual performance objectives for Mr. McCausland after consultation with him at the beginning of the fiscal year regarding his priorities for the 2009 fiscal year. Mr. McCausland established individual performance objectives with Messrs. Graff, McLaughlin and Molinini. The Committee reviewed, and based upon its subjective evaluation, approved the scores for Messrs. Graff, McLaughlin and Molinini. For the 2009 fiscal year, individual performance goals under the Fiscal Year 2009 Management Bonus Plan for Corporate Employees represented 15% of the overall annual potential cash incentive award available for Messrs. McCausland, Graff, McLaughlin and Molinini.
Strategic Goals. In addition to the corporate and division financial performance goals described above, under the Fiscal Year 2009 Management Bonus Plan for Operating Company Management, a portion of Mr. Powers annual cash incentive award is based on attainment of strategic goals. Mr. Molinini recommended specific goals and metrics with Mr. Powers. Mr. McCausland and the Committee approved the scores for Mr. Powers. For the 2009 fiscal year, strategic goals represented 20% of the overall annual potential cash incentive award available for each executive officer who was a Division President.
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Individual Objectives under the Management Bonus Plans. Following the 2009 fiscal year-end, the Committee evaluated Mr. McCauslands performance against his pre-determined individual objectives and Mr. McCausland evaluated the performance of Messrs. Graff, McLaughlin and Molinini against their pre-determined individual objectives. The Committee recognized Mr. McCauslands leadership in building a highly effective team to manage the growth of Airgas, and for conceiving and executing strategic initiatives that have positioned Airgas for continued performance above industry standard and awarded Mr. McCausland a bonus beyond his pre-determined individual objectives. For a more detailed description of the annual incentive compensation awards received by the named executive officers, see Summary Compensation Table for the 2009 Fiscal Year found on page 29 of this proxy statement.
Calculation of the Cash Awards. A participants target incentive award is multiplied by the weight for each component to determine the target payout for each component. Each performance score as a percentage (e.g., meeting the goal equals a 100% score) is multiplied by the target payout for the specific component to determine the actual incentive award for each component. Performance scores for each component utilizing performance criteria may range between 0% and 130% to 150% depending on the specific criteria. Performance scores for the individual objectives may range between 0% and 100%. The total incentive award is the sum of the components. The aggregate scores for bonus metrics are limited to 132.5% for Messrs. McCausland, Graff, McLaughlin and Molinini, and 143% for Mr. Powers. Extraordinary performance may be recognized with an additional bonus amount, but the total award opportunity is capped so that the maximum possible award is 200% of target. For the 2009 fiscal year, the Committee awarded each named executive officer an aggregate cash incentive compensation award below the executives aggregate target amount.
For the 2009 fiscal year, the Corporate EBITDA achievement was 94% of our 2009 budget, which translated into an EBITDA award of 50% of the target opportunity. The Corporate ROC achievement was 0.5 percentage points below budget, which translated into a ROC award of 70%. For the purposes of this example, we have assumed that the executive earned 100% achievement on his individual objectives and was paid 100% of the award for individual objectives. The formula is illustrated below:
EBITDA Award = 70% Weight X 50% Award = 35% of the Total Award Target
ROC Award = 15% Weight X 70% Award = 10.5% of the Total Award Target
Individual Performance Award = 15% Weight X 100% Award = 15% of the Total Award Target
The Total Award = 35% + 10.5% + 15% = 60.5% of the executives target award.
Mr. McCausland and all of the other named executive officers received their annual cash incentive awards for the 2009 fiscal year in June 2009 following Committee approval at its regular May meeting. Annual cash incentive awards earned by our named executive officers for performance during the 2009 fiscal year appear in the Summary Compensation Table for the 2009 Fiscal Year on page 29, under the headings Non-Equity Incentive Plan Compensation and Bonus.
Long-Term Equity Incentive Compensation
Our equity compensation program is designed to provide the Committee the flexibility to award long-term equity compensation incentives from several types of equity-based awards. The Committees objective in granting equity awards is to provide a strong incentive to our executives and key employees to focus on the ongoing creation of stockholder value by offering significant compensation opportunities for superior performance. These award opportunities not only allow us to offer a competitive overall compensation package, but also allow for further opportunities for stock ownership by our employees in order to increase their proprietary interest in Airgas and, as a result, their interest in our long-term success and their commitment to creating stockholder value.
Long-term equity incentives under our 2006 Equity Plan may consist of nonqualified stock options, incentive stock options (ISOs), stock appreciation rights (SARs), restricted stock, restricted stock units or any combination of the above, as the Committee may determine.
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The Committee historically has granted nonqualified stock options as the exclusive form of equity-based compensation. The table below provides certain information regarding our use of stock options during the last 10 fiscal years.
Fiscal Year-End |
Total Shares Underlying Options Granted to Employees |
Weighted Average Option Exercise Price ($) |
No. of Employees Granted Options in Fiscal Year |
Employee Options Granted in Fiscal Year as a % of Outstanding Shares at Fiscal Year-End |
Employee Options Fair Value on Date of Grant ($) |
Total Outstanding Employee Options as a % of Outstanding Shares at Fiscal Year-End | ||||||
3/31/2000 |
1,126,845 | 11.27 | 535 | 1.7 | 5,848,326 | 11.0 | ||||||
3/31/2001 |
1,734,215 | 5.71 | 800 | 2.5 | 5,428,093 | 11.9 | ||||||
3/31/2002 |
1,525,120 | 9.29 | 565 | 2.2 | 8,098,387 | 11.8 | ||||||
3/31/2003 |
1,168,250 | 16.52 | 493 | 1.6 | 9,836,665 | 11.1 | ||||||
3/31/2004 |
1,104,800 | 19.36 | 488 | 1.5 | 9,081,456 | 10.4 | ||||||
3/31/2005 |
1,007,500 | 21.15 | 446 | 1.3 | 9,349,600 | 9.1 | ||||||
3/31/2006 |
1,007,200 | 24.03 | 538 | 1.3 | 9,417,320 | 8.4 | ||||||
3/31/2007 |
933,900 | 36.19 | 472 | 1.2 | 12,838,558 | 8.1 | ||||||
3/31/2008 |
1,030,550 | 43.80 | 419 | 1.3 | 15,694,311 | 8.1 | ||||||
3/31/2009 |
1,070,000 | 59.87 | 438 | 1.3 | 19,498,530 | 8.1 | ||||||
Average Per Year |
1,170,838 | 24.72 | 519 | 1.6 | 10,509,125 | 9.8 |
In granting long-term equity incentive awards, the Committee determines:
| the executive officers to receive awards; |
| the number of shares in each grant to an executive officer; |
| the aggregate number of shares available for Mr. McCausland to grant in stock options to non-executive officers pursuant to his delegated authority; and |
| the terms and conditions of each award. |
Long-term equity incentive awards for the 2009 fiscal year were determined and approved at the Committees regularly scheduled May 2008 meeting and are reflected in this proxy statement, including in the Summary Compensation Table for the 2009 Fiscal Year found on page 29 and the Grants of Plan-Based Awards in the 2009 Fiscal Year table found on page 32 of this proxy statement.
In determining the size of long-term equity incentive awards to the named executive officers for the 2009 fiscal year, the Committee considered the dilution rate (shares granted as a percentage of shares outstanding), historical grants to the executive officers, value per share as determined by using the Black-Scholes valuation model for stock options, the value of equity-based compensation to top executives in comparable chemical and wholesale distribution companies and grant sizes relative to the executives peers at Airgas.
Our aim is to focus our executives on providing superior returns to our stockholders and driving for sustained increases in Airgas stock price. We believe that nonqualified stock options effectively focus our executives on these goals and are an efficient use of shares available under the plan.
Our stock option award program helps us to:
| motivate and reward superior performance on the part of executives and key employees; |
| enhance the link between the creation of stockholder value and long-term executive incentive compensation; |
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| encourage increased stock ownership in Airgas by executives; and |
| maintain competitive levels of total compensation. |
Option Grant Practices. The Committee makes decisions on stock option grants based solely on our compensation and retention objectives and our established measurements of the value of these awards. Each May, at its regularly scheduled meeting, the Committee approves the annual stock option awards for executive officers and the total shares available for stock option grants to our other key employees throughout the remainder of the fiscal year. The grant date for executive officers is the date of that meeting, on which the exercise price for the awards is set. We do not backdate options. In addition, we do not plan to coordinate grants of options so that they are made before announcement of favorable information, or after announcement of unfavorable information. For the 2009 fiscal year, options to purchase 302,300 shares in the aggregate were granted to 12 executive officers.
Mr. McCausland granted annual stock option awards on May 20, 2008, the day of the Committees regularly scheduled May meeting, to 409 non-executive employees to purchase 709,200 shares in the aggregate.
The only other times stock options are typically granted are in connection with a new hire or in recognition of a special achievement, known as a Chairmans Award. The exercise price for these grants is set on the date of employment or the date of final approval, whichever is later. The Committee delegated authority to Mr. McCausland to make these grants to employees, other than to executive officers, subject to an aggregate limit in the 2009 fiscal year of 75,000 shares. For the 2009 fiscal year, these grants totaled 58,500 shares to 36 non-executive officer employees. The Committee has not delegated any other aspect of the stock option grant process to any other person or committee.
The exercise price of all awarded stock options under the Airgas, Inc. 1997 Stock Option Plan, referred to in this proxy statement as the 1997 Plan, and the 2006 Equity Plan is equal to the closing selling price of Airgas shares on the NYSE on the date of grant, except that in the past under the 1997 Plan, when the grant decision was finalized by the Committee on a given date prior to the opening of trading on the NYSE, the Committee set the exercise price for such awarded stock options at the closing price of our common stock from the last preceding trading day. Employee stock option awards made in the 2009 fiscal year vest and become exercisable in equal 25% increments on each of the first four anniversaries of the grant date and expire on the eighth anniversary of the grant date, or earlier, upon certain terminations of employment.
Airgas has not granted equity awards to employees other than through the grant of stock options.
Retirement and Other Plans and Programs
We maintain the following plans and programs to provide retirement benefits to salaried employees, including Mr. McCausland and each of the named executive officers:
| the Airgas, Inc. 401(k) Plan, referred to as the 401(k) Plan; |
| the Deferred Compensation Plan I; and |
| the Deferred Compensation Plan II. |
We maintain the following plan to provide additional benefits to salaried employees, including each of the named executive officers, except Mr. McCausland:
| the Airgas, Inc. Amended and Restated 2003 Employee Stock Purchase Plan, referred to as the Employee Stock Purchase Plan, or ESPP. |
The benefits available under these plans are intended to provide income replacement after retirement, either through withdrawals from the 401(k) Plan, the Deferred Compensation Plan I or the Deferred Compensation Plan II.
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The 401(k) Plan is a qualified 401(k) defined contribution plan designed to encourage salaried employees to save and invest for retirement. Under the 401(k) Plan, employees may contribute up to the annual IRS limits on a pre-tax basis. We match employee contributions at a rate of $0.50 for each $1.00 contributed by the employee, up to 4% of the employees base salary. Our matching contributions vest 100% after the completion of one year of service, and are made in the 401(k) funds in the same weightings per fund as the employees contributions. One choice available to participants is an investment in a fund that holds Airgas common stock.
The Deferred Compensation Plan I is a nonqualified, unfunded plan. In May 2004, our Board authorized the termination of the plan for new participants and the discontinuance of further deferrals by existing participants after May 31, 2004. The plan provided employees the opportunity to defer all or any portion of their base salaries and annual cash incentive awards and non-employee directors the opportunity to defer all or a portion of their annual cash compensation. Amounts deferred are unsecured, but earn a return equal to the performance of selected mutual funds. See the table and discussion entitled Nonqualified Deferred Compensation for the 2009 Fiscal Year beginning on page 36 of this proxy statement for an additional discussion of the Deferred Compensation Plan I. The purpose of the salary and incentive award deferral program was to provide highly-compensated employees and non-employee directors with a convenient and efficient opportunity to save for retirement or other future events, such as college expenses, while deferring applicable income taxes until withdrawal. All named executive officers were eligible, but only Mr. Molinini held balances in the plan during the 2009 fiscal year.
The Deferred Compensation Plan II is a nonqualified, unfunded plan, which became effective on July 1, 2006. The plan provides our non-employee directors and a select group of highly compensated employees, including the named executive officers, the opportunity to defer up to 75% of their base salary and all or any portion of their annual incentive awards (or director fees, for non-employee directors). Amounts deferred are unsecured, but earn a return equal to the performance of selected mutual funds, one of which tracks the Airgas common stock price. See the table and discussion entitled Nonqualified Deferred Compensation for the 2009 Fiscal Year beginning on page 36 of this proxy statement for an additional discussion of the Deferred Compensation Plan II. The purpose of the program is to provide highly-compensated employees and non-employee directors with a convenient and efficient opportunity to save for retirement or other future events, such as college expenses, while deferring applicable income taxes until withdrawal. All named executive officers were eligible, but only Mr. Molinini contributed to the plan during the 2009 fiscal year.
The Employee Stock Purchase Plan is a Section 423(b) plan. The purpose of the plan is to encourage and assist employees to acquire an equity interest in Airgas through the purchase of shares of Airgas common stock at a discount by payroll deduction. The discounted purchase price is 85% of the lower of the closing price per share on the enrollment date or the closing price per share on the date on which the shares are purchased. The enrollment dates and purchase dates occur quarterly, at the beginning of each calendar quarter.
Change of Control Agreements
Airgas has entered into change of control agreements with Messrs. McCausland, Graff, McLaughlin, Molinini and Powers, and six other executive officers. These agreements were most recently amended in December 2008 to conform to recent changes to applicable federal tax laws. The terms of the agreements provide salary and benefit continuation if the executive is terminated upon a change of control. A change of control is defined to include events in which a party (other than Mr. McCausland) acquires 20% or more of the combined voting power of our then-outstanding securities, or in which Mr. McCausland, together with all affiliates and associates, acquires 30% or more of the combined voting power of our then-outstanding securities. Under the change of control agreements in place as of the end of the 2009 fiscal year, following the executives termination, he or she would be entitled to a lump-sum payment equal to two times the sum of (i) the executives annual base salary at the time of termination, plus (ii) the executives potential annual cash incentive award for the last fiscal year prior to the change of control. The executives health and welfare benefits would also continue for up to three years and the executive would be vested in all stock options and restricted stock. The cash and non-cash amounts payable under the change of control agreements and under any other arrangements with Airgas are limited to the maximum amount permitted without the imposition of an excise tax under the Internal Revenue Code. Generally, this would limit an executives benefits under the agreement to 2.99 times the executives average annual compensation for the preceding five years.
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In addition, under an arrangement originally entered into in 1992, which was amended in the Amended and Restated Executive Severance Agreement, in the event of the termination of Mr. McCauslands employment for any reason, other than for material dishonesty, including a change of control, Mr. McCausland is entitled to a payment equal to two times his annual salary, the continuation of health insurance and other employee benefits for a three-year period and automatic vesting of all of his stock options. The limitation under Mr. McCauslands change of control agreement would include the amount payable under his severance agreement for determining whether benefits would be reduced under his change of control agreement to comply with the limitation of 2.99 times his average annual compensation for the preceding five years.
The Airgas, Inc. Severance Pay Plan, referred to in this proxy statement as the Severance Pay Plan, provides severance benefits to all of our employees, including the named executive officers, in the event their employment is terminated (other than for cause and other non-qualifying terminations defined in the plan). Benefits under the plan are not available to a named executive officer if the named executive officer is eligible for similar benefits under a separate severance agreement with Airgas. Severance related benefits under the Severance Pay Plan are provided only if a participant executes a severance agreement satisfactory to Airgas. For a more detailed description of the benefits which our named executive officers may be eligible to receive under the Severance Pay Plan, see Severance Benefits found on page 37 of this proxy statement.
Perquisites and Personal Benefits
Mr. McCausland received an automobile allowance and two airline club memberships. Mr. McCausland, with the approval of our Board, utilized our corporate aircraft for personal use during the 2009 fiscal year. Mr. McCausland reimbursed Airgas for all direct costs associated with that personal use of the corporate aircraft. Mr. Molinini and Mr. Powers each received an airline club membership. There were no other perquisites for executive officers during the 2009 fiscal year, except those benefits generally available to all employees. For a more detailed description of the perquisites and personal benefits received by our named executive officers, see the table on page 31 of this proxy statement entitled, All Other Compensation for the 2009 Fiscal Year.
Other Matters
Stock Ownership Guidelines
We believe that stock ownership guidelines help to further focus our management team on the long-term success of our business and the interests of our stockholders. All executives at the Vice President level and higher and all presidents of our subsidiaries are expected to acquire and hold, within five years after accepting their positions, the lesser of a fixed number of Airgas shares or Airgas shares with a value equal to a designated multiple of their base salary. There are four tiers within our management team covered by ownership guidelines. For the Chief Executive Officer, the minimum level is the lesser of 200,000 shares or a value equal to five times base salary; for the Executive Vice President and the Chief Financial Officer, 75,000 shares or a value equal to three times base salary; for Senior Vice Presidents and selected other corporate senior officers, 40,000 shares or a value equal to two times base salary; and for other Vice Presidents and subsidiary Presidents, 25,000 shares or a value equal to one times base salary, which may include shares under vested options to satisfy 90% of the number of shares guidelines, and vested, in-the-money options to satisfy the value guidelines.
Under the guidelines, our executives are expected to satisfy their expected ownership levels as of the later of May 31, 2008 or five years after the executive became covered by the applicable ownership guideline tier. All of our named executive officers and all but one other executive officer have already met their expected ownership levels. Of the executive officers who were expected to comply by May 31, 2009, all have met the guidelines for their ownership levels.
Implications of Tax and Accounting Matters
Deductibility of Executive Compensation. Airgas is able to take deductions in excess of $1 million for certain performance-based incentives, including incentives provided under certain plans approved by our stockholders, paid to the persons identified in Section 162(m) of the Internal Revenue Code of 1986, as amended.
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Under Section 162(m), corporations may not deduct, when computing taxable income, salary and non-performance based compensation exceeding $1 million paid to a single executive. While Airgas seeks to structure compensation it pays so that it is eligible for deduction, if compliance with the terms of Section 162(m) conflicts with our compensation philosophy, or with actions that the Committee believes are in the best interests of Airgas and our stockholders, the Committee may conclude that payment of non-deductible compensation is appropriate under the circumstances to allow us to pay competitive compensation to our executive officers. For the 2009 fiscal year, Mr. McCausland was paid $69,172 of non-deductible compensation under Section 162(m).
Nonqualified Deferred Compensation. On October 22, 2004, the American Jobs Creation Act of 2004 became law, changing tax rules applicable to nonqualified deferred compensation arrangements. While the final regulations have not yet become effective, we believe that Airgas is operating in good faith compliance with the statutory provisions that became effective January 1, 2005. A more detailed discussion of our nonqualified deferred compensation arrangements is provided on page 36 under the heading Nonqualified Deferred Compensation for the 2009 Fiscal Year.
Accounting for Stock-Based Compensation. On April 1, 2006, we began accounting for stock-based awards, including stock options, in accordance with the requirements of SFAS 123R.
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EXECUTIVE COMPENSATION
Executive Compensation Tables
The following table sets forth certain information concerning the compensation earned during the fiscal year ended March 31, 2009 by our named executive officers based on salary and bonus earned during the 2009 fiscal year.
Summary Compensation Table for the 2009 Fiscal Year
Name and Principal Position(1) |
Fiscal Year |
Salary ($)(2) |
Bonus ($)(3) | Option Awards ($)(4) |
Non-Equity Incentive Plan Compensation ($)(5) |
Change in Pension Value and Nonqualified Deferred Compensation Earnings(6) |
All Other Compensation ($)(7) |
Total ($) | ||||||||
Peter McCausland |
2009 | 812,500 | 129,875 | 1,613,794 | 495,125 | -0- | 11,538 | 3,062,832 | ||||||||
2008 | 750,000 | 453,750 | 1,321,279 | 866,250 | -0- | 12,952 | 3,404,231 | |||||||||
2007 | 741,667 | 337,500 | 1,079,495 | 982,500 | -0- | 12,308 | 3,153,470 | |||||||||
Leslie J. Graff |
2009 | 264,003 | -0- | 250,124 | 80,542 | -0- | 6,207 | 600,876 | ||||||||
2008 | 254,188 | 50,000 | 207,601 | 148,562 | -0- | 9,793 | 670,144 | |||||||||
2007 | 218,750 | 100,000 | 115,880 | 160,475 | -0- | 4,362 | 599,467 | |||||||||
Robert M. McLaughlin |
2009 | 320,190 | -0- | 260,494 | 97,683 | -0- | 4,646 | 683,013 | ||||||||
2008 | 309,000 | -0- | 172,686 | 180,180 | -0- | 4,560 | 666,426 | |||||||||
2007 | 253,904 | -0- | 98,004 | 167,591 | -0- | 4,463 | 523,962 | |||||||||
Michael L. Molinini |
2009 | 477,167 | -0- | 402,745 | 174,240 | -0- | 5,285 | 1,059,437 | ||||||||
2008 | 390,750 | 100,000 | 306,978 | 277,200 | -0- | 4,952 | 1,079,880 | |||||||||
2007 | 354,750 | -0- | 230,164 | 285,318 | -0- | 7,537 | 877,769 | |||||||||
B. Shaun Powers |
2009 | 295,215 | -0- | 223,046 | 101,229 | -0- | 4,946 | 624,436 | ||||||||
2008 | 285,232 | -0- | 194,393 | 176,913 | -0- | 89,411 | 745,949 | |||||||||
2007 | 275,586 | -0- | 174,970 | 184,441 | -0- | 5,661 | 640,658 |
(1) | Mr. McLaughlin was named Senior Vice President and Chief Financial Officer on October 3, 2006. Previously, Mr. McLaughlin was Vice President and Controller. |
(2) | Mr. Molinini deferred a portion of his salary earned in the 2007, 2008 and 2009 fiscal years under the Deferred Compensation Plan II, the information for which is included in the table under Nonqualified Deferred Compensation for the 2009 Fiscal Year that begins on page 36 of this proxy statement. Each of the named executive officers also contributed a portion of his salary to our 401(k) Plan. |
(3) | As discussed on page 19 of this proxy statement under Compensation Discussion and Analysis Components of Executive Compensation for the 2009 Fiscal Year Annual Cash Incentive Awards Individual Objectives under the Management Bonus Plans, our Governance and Compensation Committee awarded Messrs. McCausland and Graff extraordinary awards for the 2007 fiscal year, and awarded Messrs. McCausland, Graff and Molinini extraordinary awards for the 2008 fiscal year, and awarded Mr. McCausland an extraordinary award for the 2009 fiscal year, in recognition of Airgas strategic accomplishments in addition to its financial performance. Except for these awards, the Governance and Compensation Committee did not award any other discretionary compensation for the 2007, 2008 or 2009 fiscal years to any of our named executive officers. |
(4) | The amounts shown reflect the dollar expense recognized for financial reporting purposes with respect to the 2007, 2008 and 2009 fiscal years for stock options granted to the named executive officers, in the 2007, 2008 and 2009 fiscal years and in prior fiscal years (to the extent such awards remain unvested in whole or in part at the beginning of the 2007, 2008 and 2009 fiscal years), in accordance with SFAS 123R and do not correspond to the actual value that may be realized by the named executive officers. Pursuant to SEC rules, the amounts |
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shown exclude the impact of estimated forfeitures related to service-based vesting conditions. For information on the valuation assumptions made in the calculation of these amounts, refer to Note 15 to Airgas consolidated financial statements for the fiscal year ended March 31, 2009, included in our Annual Report on Form 10-K filed with the SEC on June 1, 2009. For information on the valuation assumptions with respect to grants made prior to the 2009 fiscal year, refer to the note on Stock-Based Compensation to the Airgas consolidated financial statements in our Annual Report on Form 10-K for the respective fiscal year-end. See the table under Grants of Plan-Based Awards in the 2009 Fiscal Year for information on the options granted in the 2009 fiscal year to the named executive officers. |
(5) | The amounts shown reflect cash incentive awards earned by our named executive officers under the stockholder-approved Executive Bonus Plan for performance in fiscal years 2009, 2008 and 2007, based on performance criteria established at the beginning of the 2009, 2008 and 2007 fiscal years by the Governance and Compensation Committee. For officers with corporate-wide responsibilities, including Messrs. McCausland, Graff, McLaughlin and Molinini, the Committee established two formulaic performance criteria for the fiscal year earnings before interest, taxes, depreciation and amortization (EBITDA), and return on capital (ROC). In addition, a portion of each of their awards is based on achievement of individual performance goals set at the beginning of each fiscal year, which does not rely on formulas for determining the attainment levels. The individual performance goals are related to significant projects or strategic milestones and achievement is assessed following the end of the fiscal year. For officers with division responsibility, including Mr. Powers, the Committee established four formulaic performance criteria for the fiscal year Corporate EBITDA, Division EBITDA, Division ROC, and sales, volume shipped, or profit for specific product lines or market segments. |
(6) | Airgas offers its executive officers the Deferred Compensation Plan II. Until May 31, 2004, Airgas offered its executive officers the Deferred Compensation Plan I. Under each plan, earnings are calculated in the same manner and at the same rate as earnings on externally-managed, publicly-available mutual funds or on an externally-managed fund tracking Airgas common stock. We believe earnings in the deferred compensation plans are not considered above-market or preferential earnings for the purposes of this Summary Compensation Table. Airgas does not offer its executive officers a defined benefit pension plan. See the table under Nonqualified Deferred Compensation for the 2009 Fiscal Year that begins on page 36 of this proxy statement for additional information. |
(7) | The amounts shown consist of the following items detailed in the table under All Other Compensation for the 2009 Fiscal Year: |
| contributions by the company to the named executive officers 401(k) plan account; |
| automobile allowances; |
| reimbursement for airline club memberships; and |
| make-whole payments. |
All Other Compensation for the 2009 Fiscal Year
The table below presents an itemized account of All Other Compensation provided to our named executive officers during the 2009 fiscal year, regardless of the amount and any minimum thresholds provided under SEC rules and regulations. Consistent with our philosophy of pay for performance, perquisites and other compensation are limited in scope and amount.
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Name |
Matching Contributions to 401(k) ($) |
Auto Allowance ($) |
Airline Club Memberships ($) |
Make-Whole Payment ($) |
Total All Other Compensation ($) | ||||||
Peter McCausland(1) |
3,438 | 7,200 | 900 | -0- | 11,538 | ||||||
Leslie J. Graff |
4,607 | -0- | -0- | 1,600 | (2) | 6,207 | |||||
Robert M. McLaughlin |
4,646 | -0- | -0- | -0- | 4,646 | ||||||
Michael L. Molinini |
4,985 | -0- | 300 | -0- | 5,285 | ||||||
B. Shaun Powers |
4,646 | -0- | 300 | -0- | 4,946 |
(1) | Mr. McCausland reimbursed Airgas $160,857 for all direct costs associated with his personal use of the corporate aircraft. The amount reimbursed reflects the aggregate incremental cost to Airgas as recognized under SEC Regulation S-K. In determining the incremental costs for personal use, we considered fuel, supplies, contracted pilot fees, hangar and landing fees, excise tax, and travel expenses for the flight crew. |
(2) | In August 2007, in order to avoid any potential adverse tax consequences to Mr. Graff under Internal Revenue Code Section 409A, options granted to him in 2001, 2002 and 2005 were repriced so that the exercise price was fixed at an amount equal to the closing stock price on the dates that the grant letters were originally issued. In total, 15,493 shares were reissued to Mr. Graff with an average exercise price increase of 54 cents. To compensate Mr. Graff for the loss in value of the options, the company agreed to make cash payments to him on each date that the amended options vest in an amount equal to the number of shares vesting on such date multiplied by the difference between the original exercise price and the amended exercise price. A payment of $1,600 was paid to Mr. Graff in May 2008 to compensate him for the shares which vested that month. All three repriced stock options were originally granted prior to when Mr. Graff became an executive officer. |
Grants of Plan-Based Awards in the 2009 Fiscal Year
The following table sets forth information about equity awards and potential future non-equity incentive payouts provided to our named executive officers during the 2009 fiscal year under the 2006 Equity Plan and the Management Bonus Plans.
Estimated Future Payouts | ||||||||||||||
Under | ||||||||||||||
Non-Equity Incentive Plan Awards(1) |
All Other Option Awards: Number of Securities Underlying Options |
Exercise or Base Price of Option Awards ($/share)(2) |
Grant Date Fair Value of Option Awards($) | |||||||||||
Name |
Grant Date | Threshold ($) |
Target ($) |
Maximum ($) |
||||||||||
Peter McCausland |
292,875 | 825,000 | 1,093,125 | | | | ||||||||
5/20/2008 | | | | 125,000 | 60.84 | 2,313,963 | ||||||||
Leslie J. Graff |
47,260 | 133,127 | 176,393 | | | | ||||||||
5/20/2008 | | | | 14,700 | 60.84 | 272,122 | ||||||||
Robert M. McLaughlin |
57,318 | 161,460 | 213,935 | | | | ||||||||
5/20/2008 | | | | 25,000 | 60.84 | 462,793 | ||||||||
Michael L. Molinini |
102,240 | 288,000 | 381,600 | | | | ||||||||
5/20/2008 | | | | 30,000 | 60.84 | 555,351 | ||||||||
B. Shaun Powers |
44,660 | 148,866 | 212,878 | | | | ||||||||
5/20/2008 | | | | 15,800 | 60.84 | 292,485 |
(1) | These columns show the potential value of the payouts for each named executive officer under the Executive Bonus Plan for the 2009 fiscal year if the threshold, target or maximum goals are satisfied for all performance goals. The potential payouts are performance-driven and therefore completely at risk. The performance criteria, performance goals and salary and incentive award percentages for determining the payouts are described under Compensation Discussion and Analysis Components of Executive Compensation for the 2009 Fiscal Year Annual Cash Incentive Awards beginning on page 19 of this proxy statement. For the 2009 fiscal year, the Committee awarded each named executive officer an aggregate cash incentive compensation award below the executives aggregate target amount. |
(2) | The Governance and Compensation Committee met and approved the grants of stock options under our 2006 Equity Plan to our named executive officers on May 20, 2008. Each of the grants has an exercise price equal to |
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the closing price of our common stock on such date. All of the stock options detailed in the table have a term of eight years. |
Outstanding Equity Awards at 2009 Fiscal Year-End
Name |
Exercisable (#) | Unexercisable (#) | Option Exercise Price ($) |
Option Expiration Date(1) | ||||
Peter McCausland |
150,000 | | 5.50 | 05/16/2010 | ||||
150,000 | | 8.99 | 05/08/2011 | |||||
125,000 | | 16.52 | 05/06/2012 | |||||
115,000 | | 19.22 | 05/12/2013 | |||||
115,000 | | 21.15 | 05/25/2014 | |||||
82,500 | 27,500 | 24.09 | 05/24/2015 | |||||
50,000 | 50,000 | 36.17 | 05/23/2014 | |||||
31,250 | 93,750 | 43.62 | 05/08/2015 | |||||
| 125,000 | 60.84 | 05/20/2016 | |||||
Leslie J. Graff |
6,250 | | 11.50 | 05/18/2009 | ||||
2,000 | | 6.94 | 02/11/2010 | |||||
5,227 | | 8.99 | 05/08/2011 | |||||
1,743 | | 9.79 | 05/08/2011 | |||||
5,500 | | 19.30 | 03/11/2012 | |||||
3,750 | | 16.52 | 05/06/2012 | |||||
3,750 | | 16.69 | 05/06/2012 | |||||
6,900 | | 19.22 | 05/12/2013 | |||||
10,000 | | 21.15 | 05/25/2014 | |||||
5,000 | | 21.51 | 08/04/2014 | |||||
7,500 | 2,500 | 24.73 | 05/24/2015 | |||||
7,000 | 7,000 | 36.17 | 05/23/2014 | |||||
7,250 | 21,750 | 43.62 | 05/08/2015 | |||||
| 14,700 | 60.84 | 05/20/2016 | |||||
Robert M. McLaughlin |
3,000 | | 10.49 | 06/25/2011 | ||||
11,200 | | 16.52 | 05/06/2012 | |||||
10,300 | | 19.22 | 05/12/2013 | |||||
10,000 | | 21.15 | 05/25/2014 | |||||
7,050 | 2,350 | 24.09 | 05/24/2015 | |||||
5,000 | 5,000 | 36.17 | 05/23/2014 | |||||
6,650 | 19,950 | 43.62 | 05/08/2015 | |||||
| 25,000 | 60.84 | 05/20/2016 | |||||
Michael L. Molinini |
7,500 | | 8.99 | 05/08/2011 | ||||
18,700 | | 16.52 | 05/06/2012 | |||||
17,300 | | 19.22 | 05/12/2013 | |||||
15,600 | | 21.15 | 05/25/2014 | |||||
22,500 | 7,500 | 24.09 | 05/24/2015 | |||||
14,350 | 14,350 | 36.17 | 05/23/2014 | |||||
7,175 | 21,525 | 43.62 | 05/08/2015 | |||||
| 30,000 | 60.84 | 05/20/2016 | |||||
B. Shaun Powers |
22,500 | | 16.52 | 05/06/2012 | ||||
20,800 | | 19.22 | 05/12/2013 | |||||
18,000 | | 21.15 | 05/25/2014 | |||||
12,675 | 4,225 | 24.09 | 05/24/2015 | |||||
7,900 | 7,900 | 36.17 | 05/23/2014 |
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Name |
Exercisable (#) | Unexercisable (#) | Option Exercise Price ($) |
Option Expiration Date(1) | ||||
3,950 | 11,850 | 43.62 | 05/08/2015 | |||||
| 15,800 | 60.84 | 05/20/2016 |
(1) | The stock options listed above vest in 25% increments per year over four years. Except for the stock options granted to the named executive officers during the 2007, 2008 and 2009 fiscal years, which have eight-year terms, all stock options granted to the named executive officers as set forth above have 10-year terms, subject to earlier termination or expiration in the event of termination of service or as otherwise set forth in the Airgas 1984 Stock Option Plan or the 1997 Plan. |
Option Exercises During the 2009 Fiscal Year
Option Awards | ||||
Name |
Number of Shares Acquired on Exercise |
Value Realized on Exercise ($) | ||
Peter McCausland(1) |
130,000 | 2,843,100 | ||
Leslie J. Graff(2) |
5,000 | 143,100 | ||
Michael L. Molinini |
-0- | -0- | ||
Robert M. McLaughlin |
-0- | -0- | ||
B. Shaun Powers(3) |
15,000 | 419,250 |
(1) | Mr. McCausland exercised 130,000 stock options on December 11, 2008, at an exercise price of $11.50 and a market price of $33.37. |
(2) | Mr. Graff exercised 5,000 stock options on February 4, 2009, at an exercise price of $8.50 and a market price of $37.12. |
(3) | Mr. Powers exercised 15,000 stock options on February 20, 2009, at an exercise price of $7.05 and a market price of $35.00. |
Equity Compensation Plan Information
The following table sets forth information about the shares of our common stock that may be issued upon the exercise of options, warrants and rights under our equity compensation plans which were approved by our stockholders.
Plan Category |
(a) Number of securities to be issued upon exercise of outstanding options, warrants and rights |
(b) Weighted-average exercise price of outstanding options, warrants and rights |
(c) Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) | ||||
Equity compensation plans approved by security holders |
|||||||
2006 Equity Plan(1) |
6,640,369 | $ | 30.71 | 2,367,551 | |||
ESPP(2) |
132,752 | $ | 29.30 | 834,243 | |||
Equity compensation plans not approved by security holders |
| | | ||||
Total |
6,773,121 | $ | 30.68 | 3,201,794 |
(1) | At our August 2006 Annual Meeting of Stockholders, our stockholders approved the 2006 Equity Plan. The 2006 Equity Plan replaced both the 1997 Plan, and the 1997 Directors Stock Option Plan, referred to as the Directors Plan. Shares subject to outstanding stock options that terminate, expire or are canceled without having been exercised and shares available for issuance under the 1997 Plan and the Directors Plan were |
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carried forward to the 2006 Equity Plan. Future grants of stock options to employees and directors will be issued from the 2006 Equity Plan to the extent there are options available for grant. As of March 31, 2009, only stock option awards have been granted under the 2006 Equity Plan and predecessor stock option plans. |
(2) | The Employee Stock Purchase Plan was approved by our stockholders on August 9, 2006. The Employee Stock Purchase Plan encourages and assists employees in acquiring an equity interest in Airgas by allowing eligible employees to purchase common stock at a discount. |
Nonqualified Deferred Compensation for the 2009 Fiscal Year
The Deferred Compensation Plan I is a nonqualified, unfunded plan. In May 2004, our Board authorized the termination of the plan for new participants and the discontinuance of further deferrals by existing participants after May 31, 2004. The Deferred Compensation Plan I provided employees the opportunity to defer base salary and all or any portion of their annual bonus. Amounts deferred are unsecured, but earn a return equal to the performance of selected mutual funds. All named executive officers were eligible, but only Mr. Molinini held balances in the Deferred Compensation Plan I during the 2009 fiscal year.
The Deferred Compensation Plan II is a nonqualified, unfunded plan available for contribution since July 1, 2006. The Deferred Compensation Plan II provides employees the opportunity to defer base salary and all or any portion of their annual bonus. Amounts deferred are unsecured, but earn a return equal to the performance of selected mutual funds and a choice to track Airgas common stock. There are no Airgas contributions to the Deferred Compensation Plan II. The purpose of the salary and bonus deferral program is to provide highly compensated employees with a convenient and efficient opportunity to save for retirement or other future events, such as college expenses, while deferring applicable income taxes until withdrawal. All named executive officers were eligible, but only Mr. Molinini contributed to the Deferred Compensation Plan II during the 2009 fiscal year.
Name |
Executive Contributions in FY 2009 ($)(1) |
Registrant Contributions in FY 2009 ($) |
Aggregate Earnings in FY 2009 ($)(2) |
Aggregate Withdrawals/ Distributions in FY 2009 ($) |
Aggregate Balance at 3/31/09 ($) | ||||||
Peter McCausland |
-0- | -0- | -0- | -0- | -0- | ||||||
Leslie J. Graff |
-0- | -0- | -0- | -0- | -0- | ||||||
Robert M. McLaughlin |
-0- | -0- | -0- | -0- | -0- | ||||||
Michael L. Molinini |
187,698 | -0- | (10,342 | ) | -0- | 433,708 | |||||
B. Shaun Powers |
-0- | -0- | -0- | -0- | -0- |
(1) | Reflects participation by Mr. Molinini in the Deferred Compensation Plan II during the 2009 fiscal year. Salary deferral became available to officers in the Deferred Compensation Plan II on July 1, 2006. |
(2) | Reflects earnings (loss) on balances in the Deferred Compensation Plan I and the Deferred Compensation Plan II. Earnings are from tracking the results of mutual funds and a fund tracking Airgas common stock as selected by the named executive officer from the fund choices offered in each plan. |
Potential Payments upon Termination
Our named executive officers are eligible to receive benefits in the event their employment is terminated (1) by Airgas without cause, (2) upon their retirement, disability or death or (3) in certain circumstances following a change in control. The amount of benefits will vary based on the reason for the termination.
The following sections present calculations as of March 31, 2009 of the estimated benefits our named executive officers would receive in these situations. Although the calculations are intended to provide reasonable estimates of the potential benefits, they are based on numerous assumptions and may not represent the actual amount a named executive officer would receive if an eligible termination event were to occur.
In addition to the amounts disclosed in the following sections, each named executive officer would retain the amounts which he has earned or accrued over the course of his employment prior to the termination event, such
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as the named executive officers balances under our deferred compensation plans, accrued retirement benefits and previously vested stock options. For further information about previously earned and accrued amounts, see the tables entitled Summary Compensation Table for the 2009 Fiscal Year, Outstanding Equity Awards at 2009 Fiscal Year-End, Option Exercises During the 2009 Fiscal Year and Non-Qualified Deferred Compensation for the 2009 Fiscal Year.
Severance Benefits
If the employment of a named executive officer, other than Mr. McCausland, is terminated due to (1) a lack of work, (2) a reorganization of our business, (3) the closing of all or a portion of the named executive officers principal workplace or (4) economic conditions, and not as a result of a change of control, the named executive officer may be entitled to receive benefits under our Severance Pay Plan. Messrs. Graff, McLaughlin, Molinini and Powers participate in our severance plan, which is generally available to other employees. Severance-related benefits under the plan are provided only if the participant executes a separation agreement prepared by Airgas, which includes a release of claims in consideration of the payments.
Mr. McCauslands severance benefits are contained in an executive severance agreement. In the event that Mr. McCauslands employment is terminated for reasons other than cause, he would receive a lump-sum payment equal to two times his annual salary that was in effect at the end of his active employment, payments equal to the premium cost that Mr. McCausland would pay at COBRA rates for health and welfare benefits for 36 months following active employment and immediate vesting of all unvested stock options and restricted stock. We have never granted any restricted stock under the 2006 Equity Plan. All stock options held by him on his termination date would remain exercisable until the options expiration date. The agreement was amended in December 2008 to reflect certain changes to comply with Section 409A of the Internal Revenue Code, including providing that any amount payable will be delayed for a six-month period following Mr. McCauslands termination of employment, and to clarify the provision regarding the acceleration of vesting and continued exercisability of his options to comply with Section 409A and to clarify certain other provisions.
The following table presents the estimated separation benefits that would have been required to be paid to Mr. McCausland under the terms of his severance agreement if his employment had been terminated, other than for cause, as of March 31, 2009.
Named Executive Officer |
Severance Payments ($) | Vesting of Unvested Stock Options ($) |
Health & Welfare Benefits ($) |
Total ($) | |||||||
Peter McCausland |
1,650,000 | (1) | 267,300 | (2) | 16,666 | (3) | 1,933,966 |
(1) | Represents a lump-sum payment equal to two times Mr. McCauslands annual salary. |
(2) | The value of accelerated vesting of stock options is estimated using the in-the-money value as of March 31, 2009 based on a stock price of $33.81. |
(3) | The estimated net cost to Airgas of the COBRA payments for Mr. McCauslands health and welfare benefits continued for 36 months. |
Retirement, Disability and Death
Death or Retirement
To be eligible for retirement, an executive officer must be at least age 65 or have combined age and Airgas service at least equal to 75 years. Messrs. McCausland and Molinini are the named executive officers who are eligible for retirement as of March 31, 2009. In the event of death or retirement, an executive or his beneficiary is entitled to vesting of an additional year of unvested stock options and continued eligibility to exercise the vested stock options under the same terms as an active employee (i.e., until the original expiration dates unless terminated earlier under the terms of the applicable equity plan). Additionally, the named executive officer or his or her beneficiary is entitled to the executives annual incentive cash bonus award, prorated based upon the number of days the executive was an active employee with Airgas during the fiscal year, on the next bonus payment date. In the
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event of a named executive officers death, his or her beneficiary also would receive payouts under Airgas-funded life insurance policies.
The following table presents the estimated benefits payable, based on death or retirement on March 31, 2009.
Named Executive Officer |
Bonus Payment ($)(1) |
Vesting of Unvested Stock Options ($)(2) |
Total | |||
Peter McCausland |
625,000 | 267,300 | 892,300 | |||
Leslie J. Graff |
80,542 | 22,700 | 103,242 | |||
Robert M. McLaughlin |
97,683 | 22,842 | 120,525 | |||
Michael L. Molinini |
174,240 | 72,900 | 247,140 | |||
B. Shaun Powers |
101,229 | 41,067 | 142,296 |
(1) | Represents the named executive officers full bonus for the 2009 fiscal year payable on June 15, 2009. |
(2) | The value of vesting of stock options on the next anniversary is estimated using the in-the-money value as of March 31, 2009, based on a stock price of $33.81. |
Disability
Upon an executives termination of employment due to disability, the named executive officer would receive the stock option benefits described above.
The following table presents the estimated benefits payable upon death or disability as of March 31, 2009.
Named Executive Officer |
Vesting of Unvested Stock Options ($)(1) | |
Peter McCausland |
267,300 | |
Leslie J. Graff |
22,700 | |
Robert M. McLaughlin |
22,842 | |
Michael L. Molinini |
72,900 | |
B. Shaun Powers |
41,067 |
(1) | The value of vesting of stock options on the next anniversary is estimated using the in-the-money value as of March 31, 2009 based on a stock price of $33.81. |
Potential Change of Control Payments
We have agreements with all the named executive officers, which take effect only if a change of control occurs. The agreements were amended in December 2008 to comply with Sections 409A and 162(m) of the Internal Revenue Code to allow us to continue to deduct bonuses paid to the executive officers and to comply with Section 409A by providing, in part, that any amount payable will be delayed for a six-month period following the executives termination of employment if the executive is deemed to be a specified employee under Section 409A. The severance and other benefits payable to the named executive officers under their agreements are due only if (1) there is a change of control and (2) we terminate their employment unrelated to cause, or if they terminate their employment for good reason within three years following a change of control, commonly referred to as a Double Trigger. Good reason includes a material diminution of position, a material decrease in base compensation or a material change in location.
The change of control agreements entitle the executive officers to a lump-sum payment equal to two times their annual base salary prior to the executives separation from service or change of control plus two times their annual cash incentive bonus last paid to them prior to the change of control. Mr. McCausland also is entitled to a lump-sum payment equal to two times his annual base salary, as described above under Severance Benefits. The agreements also accelerate vesting of all outstanding unvested stock options and restricted stock grants and entitle
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the named executive officer to continuation of health and welfare benefits for up to 36 months. In the aggregate, the benefits under these agreements are capped at 2.99 times the average base compensation as defined in Section 280G of the Internal Revenue Code.
A change of control is defined in the agreements to include a change in a majority of the Board, consummation of certain mergers and the sale of all or substantially all of Airgas assets. The change of control definition also includes events in which a party (other than Mr. McCausland) acquires 20% or more of the combined voting power of our then-outstanding securities, or in which Mr. McCausland, together with all affiliates and associates, acquires 30% or more of the combined voting power of our then-outstanding securities.
The following table assumes that each named executive officer is terminated after a change of control for reasons other than cause, retirement, disability or death. These values are estimated as of March 31, 2009.
Named Executive Officer |
Severance Payments ($) |
Vesting of Unvested Stock Options ($)(2) |
Health & Welfare Benefits ($)(3) |
Total ($) | |||||
Peter McCausland |
4,550,000 | (1) | 267,300 | 16,666 | 4,833,966 | ||||
Leslie J. Graff |
693,592 | 22,700 | 25,207 | 741,499 | |||||
Robert M. McLaughlin |
841,206 | 22,842 | 25,207 | 889,225 | |||||
Michael L. Molinini |
1,576,480 | 72,900 | 16,666 | 1,666,046 | |||||
B. Shaun Powers |
797,922 | 41,067 | 16,666 | 855,655 |
(1) | Mr. McCausland would have received the severance payment under his severance agreement (two times his annual base salary) in addition to the severance payment under his change of control agreement (two times his annual base salary plus two times his annual cash incentive bonus last paid to him prior to the change of control). |
(2) | The value of accelerating vesting of stock options is estimated using the in-the-money value as of March 31, 2009, based on a stock price of $33.81. |
(3) | The estimated net cost to Airgas of health and welfare benefits continued for 36 months. |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Review and Approval of Related Person Transactions
We review all relationships and transactions in which Airgas and our directors and executive officers or their immediate family members are participants to determine whether such persons have a direct or indirect material interest. Our legal staff is primarily responsible for the development and implementation of processes and controls to obtain information from the directors and executive officers with respect to related person transactions and for then determining, based on the facts and circumstances, whether Airgas or a related person has a direct or indirect material interest in the transaction. As required under SEC rules, transactions that are determined to be directly or indirectly material to Airgas or a related person are disclosed in our proxy statement. In addition, the Audit Committee reviews and approves or ratifies any related person transaction that is required to be disclosed. In the course of its review and approval or ratification of a disclosable related party transaction, the Committee considers:
| the nature of the related persons interest in the transaction; |
| the material terms of the transaction, including, without limitation, the amount and type of transaction; |
| the importance of the transaction to the related person; |
| the importance of the transaction to Airgas; |
| whether the transaction would impair the judgment of a director or executive officer to act in the best interest of Airgas; and |
| any other matters the Committee deems appropriate. |
Transactions
Since the beginning of the 2009 fiscal year, we have not engaged in any transaction or series of similar transactions, or any currently proposed transaction or series of similar transactions, to which Airgas or any of its subsidiaries was or is to be a participant (1) in which the amount involved exceeds $120,000 and (2) in which any of our directors, executive officers or persons known to us to be beneficial owners of more than 5% of our common stock, or members of the immediate families of those individuals, had or will have, a direct or indirect material interest.
We do have business relationships with corporations or other organizations in which a director, nominee for director or executive officer of Airgas may also be a director, executive officer, investor or trustee, or have some other similar direct or indirect relationship with the other corporation or organization. For example, we provide goods and services to, and purchase goods and services from, companies such as Triumph Group, Inc. (of which Richard C. Ill, one of our directors, is President and Chief Executive Officer and a director), Tyco Electronics, Ltd. (of which Paula A. Sneed, one of our directors, is a director), Rayonier, Inc. (of which Lee M. Thomas, one of our directors, is Chairman, President and Chief Executive Officer) and American Water Works Company, Inc. (of which Ellen C. Wolf, one of our directors, is Senior Vice President and Chief Financial Officer). In all instances, including those described above, we enter into these arrangements in the ordinary course of business and each party provides to or receives from the other the relevant goods and services on a non-exclusive basis at arms-length negotiated rates. In addition, none of our directors was directly involved with the negotiation or consummation of any such arrangement. While any revenue, profits or other aspects of a business relationship with us may, of course, affect the individuals overall compensation or value of his or her investments in the other corporation or organization, we do not believe that in any of these cases the relevant director receives or has received any compensation from the other corporation that is directly linked to an Airgas-related business arrangement. None of these arrangements is material to us or to the other corporation or organization involved, and we do not believe that any indirect interest that our directors may have with respect to such an arrangement is material.
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SECURITY OWNERSHIP
The following table sets forth certain information, according to information supplied to Airgas, regarding the number and percentage of shares of our common stock beneficially owned on March 31, 2009 (1) by each person who is the beneficial owner of more than 5% of our common stock, (2) by each director and nominee for director, (3) by each named executive officer and (4) by all of our directors, nominees for director and executive officers as a group. Unless otherwise indicated, the stockholders listed possess sole voting and investment power with respect to the shares listed.
Name of Beneficial Owner |
Amount and Nature of Beneficial Ownership(1) |
Percentage of Shares Outstanding |
||||
Peter McCausland |
8,465,925 | (2)(3)(4)(5) | 10.3 | % | ||
Bonnie F. McCausland |
7,472,636 | (5)(6) | 9.2 | % | ||
W. Thacher Brown |
186,815 | (2)(7) | * | |||
James W. Hovey |
100,750 | (2) | * | |||
Richard C. Ill |
41,500 | (2) | * | |||
Paula A. Sneed |
78,669 | (2) | * | |||
David M. Stout |
78,250 | (2) | * | |||
Lee M. Thomas |
63,875 | (2) | * | |||
John C. van Roden, Jr. |
23,540 | (2)(8) | * | |||
Ellen C. Wolf |
4,773 | (2) | * | |||
Leslie J. Graff |
105,861 | (2)(4) | * | |||
Michael L. Molinini |
139,721 | (2) | * | |||
Robert M. McLaughlin |
77,683 | (2) | * | |||
B. Shaun Powers |
109,535 | (2) | * | |||
FMR LLC |
6,676,393 | (9) | 8.2 | % | ||
Barclays Global Investors, NA. |
5,433,105 | (10) | 6.7 | % | ||
All directors and executive officers as a group (20 persons) |
10,175,653 | (2)(3)(4)(5)(6)(7)(8) | 12.2 | % |
* | Less than 1% of our outstanding common stock. |
(1) | Includes all options and other rights to acquire shares exercisable on or within 60 days of March 31, 2009. |
(2) | Includes the following number of shares of our common stock which may be acquired by certain directors, executive officers and 5% stockholders through the exercise of options that were exercisable as of March 31, 2009 or became exercisable within 60 days of that date: Mr. McCausland, 933,750 shares; Mr. Brown, 59,500 shares; Mr. Hovey, 59,500 shares; Mr. Ill, 34,000 shares; Ms. Sneed, 59,500 shares; Mr. Stout, 72,000 shares; Mr. Thomas, 50,500 shares; Mr. van Roden, 18,540 shares; Ms. Wolf, 4,773 shares; Mr. Graff, 88,795 shares; Mr. Molinini, 132,475 shares; Mr. McLaughlin, 70,950 shares; Mr. Powers, 101,900 shares; and all directors and executive officers as a group, 2,277,608 shares. |
(3) | Investment and/or voting power with respect to 6,902,574 of such shares are shared with, or under the control of, Mr. McCauslands spouse, Bonnie McCausland, 90,562 shares are held by a charitable foundation of which Mr. McCausland is an officer and director and 478,000 shares are held by four separate grantor retained annuity trusts of which Mr. McCausland and Mrs. McCausland are co-trustees. |
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(4) | Includes the following shares of our common stock held under our 401(k) Plan as of March 31, 2009: Mr. McCausland, 45,339 shares; Mr. Graff, 4,156 shares; and all executive officers as a group, 62,053 shares. |
(5) | 1,600,000 of such shares are pledged as collateral for a $30,000,000 line of credit with a brokerage firm. Mr. and Mrs. McCausland anticipate that the line of credit will serve as an interim facility and will be replaced by permanent financing not requiring the pledge of any of their Airgas shares. |
(6) | Investment and/or voting power with respect to 6,902,574 of such shares are shared with, or under the control of, Mrs. McCauslands spouse, Peter McCausland, 90,562 shares are held by a charitable foundation of which Mrs. McCausland is an officer and director, 478,000 shares are held by four separate grantor retained annuity trusts of which Mr. McCausland and Mrs. McCausland are co-trustees and 1,500 shares are held in Mrs. McCauslands individual IRA account. |
(7) | Mr. Brown disclaimed beneficial ownership of 8,000 shares held by immediate family in a Form 4 filed on January 30, 2008. |
(8) | Includes 3,000 shares owned by a general partnership of which Mr. van Roden is a 0.5% owner and a general partner. |
(9) | FMR Corp. and several related entities filing for the purposes of such report (collectively, FMR), filed a Schedule 13G/A on March 10, 2009, upon which Airgas has relied in making this disclosure. FMR has sole voting power as to 1,363,155 shares and sole dispositive power as to 6,676,393 shares. |
(10) | Barclays Global Investors, NA. and several related entities filing for the purposes of such report (collectively Barclays) filed a Schedule 13G on February 5, 2009, upon which Airgas has relied in making this disclosure. Barclays has sole voting power as to 4,189,638 shares and sole dispositive power as to 5,433,105 shares. |
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