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As filed with the Securities and Exchange Commission on June 2, 1997
Registration No. 333-_______
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AIRGAS, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-0732648
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
259 Radnor-Chester Road, Suite 100 Radnor Pennsylvania 19087-5240
(Address of Principal Executive Offices)
CARBONIC INDUSTRIES CORPORATION 1994 STOCK OPTION PLAN
(Full Title of the Plans)
TODD R. CRAUN, ESQUIRE
AIRGAS, INC.
Radnor Court
259 Radnor-Chester Road, Suite 100
Radnor, Pennsylvania 19087-5240
(Name and address of agent for service)
(610) 687-5253
(Telephone number, including area code, of agent for service)
__________________
Copies to:
NANCY D. WEISBERG, ESQUIRE
McCAUSLAND, KEEN & BUCKMAN
Radnor Court
259 Radnor-Chester Road, Suite 160
Radnor, Pennsylvania 19087-5240
(610) 341-1000
CALCULATION OF REGISTRATION FEE
Amount Proposed Amount of
Title of Securities To be Maximum Aggregate Registration
To be Registered Registered Offering Price (1) Fee
__________________ ___________ __________________ ____________
Common Stock, par
value $.01 per share 196,571(2) $1,028,066 $311
___________________
(1) Estimated solely for the purpose of calculating the registration fee
under Section 457(h) based upon the average
exercise price of $5.23 per share.
(2) This Registration Statement shall also cover any additional shares
of Common Stock which become issuable under the Carbonic Industries
Corporation 1994 Stock Option Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without the receipt of consideration which results in an increase in
the number of the Company's outstanding shares of Common Stock.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
registration statement:
(a) The Company's annual report on Form 10-K for the fiscal year
ended March 31, 1996, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "1934 Act");
(b) The Company's quarterly reports on Form 10-Q for the quarters
ended June 30, 1996, September 30, 1996 and December 31, 1996.
(c) The Company's current reports on Form 8-K dated April 5, 1996,
May 7, 1996, June 28, 1996, July 11, 1996, July 31, 1996, August 5, 1996,
August 22, 1996, October 24, 1996, December 5, 1996, December 23, 1996,
January 24, 1997, February 5, 1997, March 18, 1997, April 14, 1997, April 21,
1997 and April 29, 1997.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of
the 1934 Act since the end of the Company's fiscal year ended March 31, 1996;
and
(e) The description of the Company's Common Stock contained in Item
1 of the Company's registration statement on Form 8-A filed under the 1934 Act
on December 19, 1986.
In addition, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, after the
date hereof, prior to the filing of a post-effective amendment which indicates
that all securities offered herein have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be part hereof from the date
of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of May 22, 1997, certain attorneys with McCausland, Keen &
Buckman, counsel for the Registrant, beneficially owned 50,985 shares of the
Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Registrant's Amended and Restated Certificate of Incorporation
includes a provision limiting the liability of its directors and officers and
its stockholders, to the maximum extent permitted by law, for money damages
except for liability (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the GCL, or (iv) for any transaction from which the
director derived an improper personal benefit.
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Section 145 of the General Corporation Law of the State of Delaware,
as amended (the "GCL"), provides that under certain circumstances a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at its request in such capacity
in another corporation or business association, against expenses (including
attorneys' fees), judgements, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
The directors and officers of the Registrant are insured under
policies of insurance maintained by the Registrant, subject to the limits of
the policies, against certain losses arising from any claim made against them
by reason of being or having been such directors or officers. In addition,
the Registrant has entered into contracts with all of its directors providing
for indemnification of such persons by the Registrant to the full extent
authorized or permitted by law, subject to certain limited exceptions.
Item 7. Exemption From Registration Claimed.
None.
Item 8. Exhibits.
* 4.1 Carbonic Industries Corporation 1994 Stock Option Plan.
* 4.2 Form of Carbonic Industries Corporation ("CIC") Incentive
Stock Option Agreement.
* 5 Opinion of McCausland, Keen & Buckman.
*24.1 Consent of McCausland, Keen & Buckman (included in Exhibit
5).
*24.2 Consent of KPMG Peat Marwick LLP (included in Part II of
the Registration Statement).
*25 Power of Attorney (see signature page in Part II of the
Registration Statement).
* Filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
<PAGE> 4
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the Act
need not be furnished, provided that the registrant includes in the
prospectus, by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus is at least as current as
the date of those financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective amendment
need not be filed to include financial statements and information required by
Section 10(a)(3) of the Act or Rule 3-19 of Regulation S-X if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Form F-3.
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The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
<PAGE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Delaware County, Pennsylvania, on the 2nd day of
June, 1997.
AIRGAS, INC.
By: /S/Peter McCausland
________________________________
Peter McCausland
Chairman of the Board and Chief Executive Officer
By: /S/Thomas C. Deas, Jr.
________________________________
Thomas C. Deas, Jr.
Vice President-Finance & Chief Financial Officer
(Principal Financial Officer)
By: /S/Jeffrey P. Cornwell
_________________________________
Jeffrey P. Cornwell
Assistant Vice President and Corporate Controller
(Principal Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Peter McCausland and Todd R. Craun, and
each or any of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
Signature Title Date
_________ _____ _____
/S/W. Thacher Brown
_______________________
W. Thacher Brown Director June 2, 1997
_______________________
Frank B. Foster, III Director
/S/Dr. Robert E. Naylor
_______________________
Dr. Robert E. Naylor Director June 2, 1997
/S/Robert L. Yohe
_______________________
Robert L. Yohe Director June 2, 1997
/S/John A. H. Shober
_______________________
John A. H. Shober Director June 2, 1997
/S/Merril L. Stott
_______________________
Merril L. Stott Director June 2, 1997
/S/Erroll C. Sult
_______________________
Erroll C. Sult Director June 2, 1997
/S/Argeris N. Karabelas
_______________________
Argeris N. Karabelas Director June 2, 1997
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<PAGE> EX-1
CARBONIC INDUSTRIES CORPORATION
1994 STOCK OPTION PLAN
I. PURPOSE.
The Carbonic Industries Corporation 1994 Stock Option Plan is intended to
encourage stock ownership by directors, officers, other key employees,
consultants and employees of consultants of the Corporation, of its
Subsidiaries and of its Affiliates, to provide them with a proprietary
interest or to increase their proprietary interest in the Corporation's
success and/or to encourage them to remain in the employ of the Corporation or
any of its Subsidiaries or Affiliates.
II. DEFINITIONS
Where the following words appear in the Plan, they shall have the respective
meanings set forth below, unless their context clearly indicates a contrary
meaning:
A. Affiliate - Any corporation or other business organization in which the
Parent owns, directly or indirectly, 25% or more of the voting stock or
capital at the time of the granting of the Option.
B. Board of Directors - The Board of Directors of the Corporation.
C. Code - The Internal Revenue Code of 1986, as amended, including
amendments hereafter adopted.
D. Committee - The Compensation Committee of the Board of Directors or any
successor Committee appointed by the Board of Directors. In the absence of
the appointment of the Committee, the Board of Directors of the Corporation
shall exercise all of the powers of the Committee under the Plan.
E. Corporation - Carbonic Industries Corporation, a Florida corporation,
which is the parent corporation as defined in Subsections 424(e) and (g) of
the Code.
F. Employee - Employee shall mean any officer or other key employee
(including an officer or other key employee who is also a director) employed
on a full-time basis by the Corporation or any present or future Parent or
Subsidiary or Affiliate.
G. ISO - An option granted under the Plan which constitutes an incentive
stock option within the meaning of Section 422 of the Code.
H. Non-Qualified Stock Option or NQSO - An option granted under the Plan
which does not qualify as an ISO.
I. Option - An option granted under the Plan which may be either an ISO or a
Non-Qualified Stock Option.
J. Option Agreement - The document setting forth the terms and conditions of
each Option.
K. Optionee - The holder of an Option.
L. Parent - Parent shall mean any present or future corporation as defined
in Subsections 424(e) and (g) of the Code.
M. Plan - Carbonic Industries Corporation 1994 Stock Option Plan, as the
same may be amended from time to time in accordance with the terms hereof.
<PAGE> EX-2
N. Shares - The shares of common stock of the Corporation, $2.00 par value,
subject to adjustment and substitution as provided in Paragraph V of the Plan.
O. Subsidiary - Any present or future subsidiary of the Corporation as
defined in Subsections 424(f) and (g) of the Code.
III. ADMINISTRATION.
A. The Committee shall have full and complete authority in its sole
discretion, but subject to the express provisions of the Plan: to grant
Options; to determine the option price of the Shares covered by each Option;
to determine the directors of the Corporation, Employees consultants and
employees of consultants of the Corporation, of its Subsidiaries and of its
Affiliates to whom, and the time or times at which, Options shall be granted;
to determine the number of Shares to be covered by each Option; to interpret
the Plan; to prescribe, amend and rescind rules and regulations relating to
the Plan; to determine the terms and provisions of the respective option
grants (which terms need not be identical); to cancel and amend Options (with
the consent of the holder of the Option where required); to impose such
conditions on the grant of Options as it determines to be appropriate,
including the surrender of outstanding stock options issued under the Plan or
any other stock option plan, regardless of the option price; and to make all
other determinations and rules and take such other action deemed necessary or
advisable for the administration of the Plan. In addition, the Committee may
extend the duration of any NQSO for a period not to exceed one year subject to
the provisions of Paragraph VI B hereof without changing the option price upon
such terms as the Committee may deem advisable.
Each determination, interpretation, rule or other action made or taken
pursuant to the Plan by the Committee shall be final and conclusive for all
purposes and binding upon all persons, including, but without limitation
thereto, the Corporation, Subsidiaries, Affiliates, the Board of Directors,
the Committee, Optionees and Employees of the Corporation, its Subsidiaries
and its Affiliates and Optionees and their respective successors in interest.
B. The Committee shall consist of not less than two (2) directors. In the
event any class of equity security of the Corporation is registered pursuant
to Section 12 of the Securities Exchange Act of 1934 ("34 Act"), each member
of the Committee shall be a member of the Board of Directors who is not
eligible to participate under the Plan and who has not been granted or awarded
equity securities of the Corporation for at least one year prior to the time
the director becomes a member of the Committee or during such service on the
Committee pursuant to the Plan or any other "plan" within the meaning of Rule
16b-3 promulgated under the 34 Act, except as otherwise permitted under Rule
16b-3 (or any successor rule or regulation).
The Board of Directors may designate one (1) of the members of the Committee
as its chairperson and the Committee shall hold its meetings at such times and
places as it shall deem advisable. A majority of its members shall constitute
a quorum. All determinations of the Committee shall be made by a majority of
its members present at a meeting at which a quorum was present. Any decision
or determination reduced to writing and signed by all the members of the
Committee shall be effective as if it had been made by a vote at a meeting
duly called and held. The Committee shall keep minutes of its meetings and
shall make such rules and regulations for the conduct of its business as it
shall deem advisable.
C. No member of the Committee shall be liable for any action or
determination made in good faith with respect to the administration of the
Plan and the granting of Options thereunder.
<PAGE> EX-3
IV. ELIGIBILITY AND LIMITATIONS.
Options may be granted only to directors of the Corporation, Employees,
consultants and employees of consultants of the Corporation or of any
Subsidiary or Parent or Affiliate. Persons who are not Employees of the
Corporation or of a Subsidiary or Parent will not be eligible to receive an
ISO. In determining the number of shares to be covered by each Option,
subject to Paragraph V hereof, and persons to whom Options shall be granted,
the Committee shall take into account such factors as it shall deem relevant
in connection with accomplishing the purpose of the Plan as set forth in
Paragraph I hereof. Any person who has been granted an Option may be granted
an additional Option or Options if the Committee shall so determine. No ISO
shall be granted to an individual who, at the time the ISO is granted, owns
(within the meaning of subsection 422(b)(6) of the Code) stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Corporation or of its Parent or any Subsidiary, unless, at the time the ISO is
granted, the option price is at least 110 percent (110%) of the fair market
value of the Shares subject to the ISO, and the ISO by its terms is not
exercisable after the expiration of five (5) years from the date the ISO is
granted. Directors of the Corporation who are not Employees will not be
eligible to receive an Option if any class of equity security of the
Corporation is registered pursuant to Section 12 of the 34 Act.
ISOs granted to an Optionee in excess of the limitations set forth in
subsection 422(d) of the Code for any calendar year shall be deemed to be a
Non-Qualified Stock Option.
Each Option must be granted within ten (10) years from the date on which the
Plan is adopted by the Board of Directors.
V. AVAILABLE SHARES AND STOCK ADJUSTMENTS.
A. The total number of Shares that may be issued pursuant to Options granted
under the Plan shall not exceed 100,000 Shares of Common Stock, subject to
adjustment as set forth hereinafter. Shares subject to the Plan may be either
authorized but unissued Shares or Shares that were once issued and
subsequently reacquired by the Corporation. If any Option is surrendered
before exercise or lapses without exercise or for any other reason ceases to
be exercisable, the Shares reserved therefor shall continue to be available
under the Plan. The Corporation will reserve and keep available a sufficient
number of authorized but unissued Shares and/or treasury Shares to be issued
upon the exercise of the Options.
B. In the event of a stock split, reverse stock split, stock dividend, or a
reclassification of the Shares or other similar action by the Corporation, the
total number of Shares which may be issued under the Plan upon the exercise of
Options and the total number of Shares and/or the option price contained in
any outstanding Option pursuant to which Options were granted under the Plan,
shall be appropriately adjusted as determined by the Board of Directors in its
sole discretion. Any such adjustment in the number of Shares and/or option
price of an ISO shall be made in such manner as to not constitute a
modification as defined in Subsection 424(h)(3) of the Code and only to the
extent permitted by Sections 422 and 424 of the Code.
C. In the event of any merger or consolidation or other reorganization in
which the Corporation shall be the surviving corporation and its shareholders
retain all of the Shares held immediately prior to such event and receive no
securities or other property, there shall be no change in the securities, the
number of Shares or the option price that the holder of the Option will be
entitled to receive upon the exercise of the Option except as set forth in
Paragraph V B, if applicable.
<PAGE> EX-4
D. In the event of any merger or consolidation or other reorganization in
which the Corporation shall be the surviving corporation and its shareholders
have a right to receive securities for or other property in addition to, the
outstanding Shares held, each holder of an outstanding Option shall be
entitled to receive, upon the exercise of the Option, in lieu of the number of
Shares as to which such holder of the Option would otherwise have been
entitled to receive upon the exercise of the Option immediately prior to such
merger or consolidation or other reorganization, the number and class of
shares and other securities and other property to which such holder of the
Option would have been entitled to receive (or retain) pursuant to the terms
of the merger or consolidation or other reorganization if, at the time of such
merger or consolidation or other reorganization, such holder of the Option had
been the holder of record of a number of Shares equal to the number of Shares
to which such Option is then being so exercised. Comparable rights shall
accrue to each holder of an Option in the event of successive mergers or
consolidations or other reorganizations.
E. In the event of any merger or consolidation or other reorganization, in
which the Corporation is not the surviving corporation and the shareholders of
the Corporation shall not receive any equity securities of the surviving
corporation (or its Parent) for their Shares, except as hereinafter set forth,
all Options (whether or not vested in whole or in part) which have not been
exercised prior to or upon such event, shall terminate upon such event unless
and to the extent the Board of Directors shall have provided for the
substitution of other options for, or for the assumption by the surviving
corporation (or its Parent) of any unexercised Options then outstanding. Such
action by the Board of Directors may be taken with respect to ISO's only to
the extent permitted by the Code, including Sections 422 and 424. Except to
the extent the Board of Directors shall have provided for the substitution of
other options for, or for the assumption by another corporation of, any
unexercised Options then outstanding or shall have specifically otherwise
provided as permitted by this Subparagraph E, the Options which have not
vested shall not become exercisable upon such event and all outstanding
Options shall expire upon such event.
F. In the event of any merger or consolidation or other reorganization in
which the Corporation is not the surviving corporation and in which its
shareholders shall receive equity securities (regardless of whether they
receive other property) for their Shares, each holder of an outstanding Option
shall be entitled to receive, upon the exercise of the Option, in lieu of the
number of Shares as to which such holder of the Option would otherwise have
been entitled to receive upon the exercise of the Option immediately prior to
such merger or consolidation or other reorganization, the number and class of
shares and other securities and other property to which such holder of the
Option would have been entitled to receive pursuant to the terms of the merger
or consolidation or other reorganization if, at the time of such merger or
consolidation or other reorganization, such holder of the Option had been the
holder of record of a number of Shares equal to the number of Shares to which
such Option is then being so exercised. Comparable rights shall accrue to
each holder of an Option in the event of successive mergers or consolidations
or reorganizations.
G. Upon the dissolution or liquidation of the Corporation, all Options,
whether or not vested in whole or in part, which have not been exercised prior
to such event shall terminate upon such event.
H. Any adjustments pursuant to this Paragraph V may provide for the
elimination of any fractional interest which might otherwise become subject to
an Option, with or without consideration, as determined by the Board of
Directors.
<PAGE> EX-5
VI. OPTION TERMS.
The Options will be granted under terms and conditions set forth in a written
instrument as determined by the Committee from time to time. The Options will
include (but not by way of limitation) the following:
A. Price and Payment - The purchase price of each Share covered by each
Option as determined by the Committee. The purchase price of each Share
covered by an Option shall not be less than the fair market value of a Share
at the time of the granting of the Option. The fair market value of a Share
shall be determined without regard to any restriction other than restrictions
which by their terms will never lapse. The purchase price of the Shares to
which an Option shall be exercised shall be paid in full at the time of the
exercise in cash or by check, subject to collection. The Committee may also
provide that the purchase price may be paid in whole or in part by assigning
to the Corporation a number of Shares having a fair market value, determined
as of the date the Option is exercised, equal to the amount of the purchase
price for the Shares being acquired upon the exercise of the Option which the
Committee permits to be paid by the assigning of Shares to the Corporation.
In such event, the Committee may, in its sole discretion, require certain
representations and other conditions precedent to the acceptance of the Shares
from the Optionee.
B. Duration - The duration of the Options shall be as determined by the
Committee, but in no event shall an Option granted hereunder be exercisable
after the earliest of any of the following dates: (i) the expiration of ten
(10) years from the date the Option is granted; (ii) one (1) year after the
cessation of employment or engagement, as the case may be, of the holder of
the Option with the Corporation, any Subsidiary, or the Parent or Affiliate,
except in the event of termination of such employment or engagement, as the
case may be, by reason of disability or death; (iii) two (2) years after the
cessation of such employment or engagement, as the case may be, in the event
of termination of employment or engagement, as the case may be, due to death
or disability (within in the meaning of Subsection 422(c)(6) of the Code).
The Committee's determination as to whether such employment, engagement or
election of an Optionee has ceased and the effective date thereof shall be
final and conclusive on all persons affected thereby. Whether military or
other government or eleemosynary service or other leave of absence will
constitute termination of such employment or engagement shall be determined in
each case by the Committee in its sole discretion.
C. Non-transferability - ISO's granted under the Plan shall not be
transferable otherwise than by will or the laws of descent and distribution or
as otherwise permitted pursuant to Subsection 424(c)(4) of the Code (or any
successor provision). ISOs may be exercised during the lifetime of the
Optionee only by the Optionee personally or by the Optionee's legal
representative.
D. Exercise of Option - Options granted hereunder shall be exercisable in
whole or in part as determined by the Committee.
E. Conditions to Exercise of Options - Shares shall not be issued with
respect to any Option granted under the Plan unless the issuance and delivery
of such Shares shall comply with (or be exempt from) all relevant provisions
of law, including, without limitation, the Securities Act of 1933, as amended,
the rules and regulations promulgated thereunder, any applicable state
securities law, and the requirements of any stock exchange or nation market
system on which the Shares may then be listed. If the issuance or transfer of
Shares to be issued or issued pursuant to any Option granted under the Plan
may in the opinion of counsel to the Corporation conflict or be inconsistent
with or not be permitted under any applicable law or regulation of any
<PAGE> EX-6
governmental agency having jurisdiction, including, without limitation,
regulations promulgated pursuant to federal and state securities laws, the
Corporation reserves the right to delay the issuance of the Shares upon the
exercise of an Option and such delay shall be without liability to or other
obligation of the Corporation. The Corporation shall have no obligation
hereunder to file registration statements or other reports or notices or
obtain any license or permit or exemption under any federal or state law with
respect to the grant of an Option or the issuance of Shares upon the exercise
of an Option or the transfer of such Shares at any time thereafter. The Board
of Directors or Committee may require that the holder of an Option, as a
condition to each exercise of the Option in whole or in part, to represent to
the Corporation in writing that the Shares to be acquired upon the exercise of
the Option are to be acquired by the holder of the Option for investment
purposes only, for such person's own account, and not with a view to
distribution and make such other representations as counsel to the Corporation
may reasonably request to assure the availability of an exemption from or
compliance with the registration, notice, reporting or permitting requirements
of applicable federal or state securities laws. The Option may also set forth
such other terms and conditions relating to the non-registration or
qualification of the Shares or the issuance of the Shares by the Corporation
or the transfer of the Shares by the Optionee under the federal and state
securities laws, as the Board of Directors or Committee may prescribe. Such
representations and other terms and conditions shall continue in effect as
long as counsel to the Corporation may reasonably request.
F. Disposition of Shares - In the event the disposition of Shares acquired
upon the exercise of any Option is not covered by a then current registration
statement under the Securities Act of 1933, as amended, and under applicable
state securities laws, the Shares so purchased shall be restricted against
transfer to the extent and for as long as required by such laws and
regulations promulgated thereunder or until, and as long as, the Shares are
covered by applicable registration statements filed by the Corporation in its
sole discretion.
G. Tax Withholdings - The Corporation, in its sole discretion and on terms
it shall determine, may withhold, or may grant to an Optionee the right to
elect to have withheld, Shares having a fair market value not in excess of the
amount necessary to satisfy the withholding tax obligations of the Optionee,
in whole or in part, relating to the exercise of the Option. In the event any
class of equity security of the Corporation is registered pursuant to Section
12 of the 34 Act, any election granted to an executive officer (as defined
pursuant to rules promulgated under the 1934 Act) or director of the Parent
shall only be made during the period set forth in Rule 16b-3 promulgated under
the 1934 Act (or any successor rule or regulation). The Optionee shall also
pay in cash to the Corporation any amount required under the Code and other
applicable statute or regulation to be withheld upon the exercise of an
Option.
VII. EXERCISE.
An Option granted hereunder shall be exercisable in whole or in part only by
written notice delivered in person or by mail to the President of the
Corporation at its principal executive office, specifying the number of Shares
to be purchased and accompanied by payment therefor and other consideration in
accordance with the Option. The holder of an Option shall not be deemed to be
a holder of any Shares subject to any Option and shall not be entitled to the
rights of a holder of any Shares, including the right to vote the Shares and
to receive dividends, unless and until such Shares have been issued.
<PAGE> EX-7
VIII. TERMINATION AND AMENDMENT.
The Board of Directors may at any time terminate the Plan, or make such
amendments thereto or modifications thereof as it shall deem advisable,
including amendments deemed necessary or desirable to conform any ISO to any
change in the Code or regulations thereto; provided, however, that the Board
of Directors may not, without further approval by the shareholders of the
Corporation, increase the maximum number of Shares for which Options may be
granted under the Plan or change the designation of the class of employees and
other persons eligible to receive Options. No termination, modification or
amendment of the Plan shall, without the consent of the Optionee to whom an
Option shall theretofore have been granted, adversely affect the rights of
such Optionee under such Option without the written consent of such Optionee.
IX. MISCELLANEOUS.
A. Applicable Law. The Plan shall be governed and construed in accordance
with the laws of the State of Georgia.
B. Employee/Employer Rights. The granting of Options hereunder shall be
entirely discretionary and nothing in the Plan shall be deemed to give any
person any right of continued employment, engagement or officership, as the
case may be, or give any person any right to receive Options or additional
Options hereunder or interfere in any way with the right of the Corporation,
its Parent or Subsidiary to terminate the Optionee's employment, engagement or
election, as the case may be, for any reason or the right of the Optionee to
terminate his/her employment, engagement, or officership, as the case may be,
for any reason.
C. ISO Grants. The Plan is intended to provide in part for the grant of
ISO's pursuant to Section 422 of the Code, including amendments thereto
hereafter adopted, and the provisions of the Plan as they relate to ISO's and
the ISO's granted shall be construed to effectuate such purpose. If for any
reason it is subsequently determined that an Option intended to qualify as an
ISO does not so qualify, the Corporation, Parent and Subsidiary shall have no
liability to the Optionee and such Options shall be deemed to be Non-Qualified
Stock Options.
X. EFFECTIVE DATE.
The Plan shall become effective on the date of its adoption by the Board of
Directors subject to the approval of the Plan by the shareholders of the
Corporation within twelve (12) months after the date of its adoption. The
date of granting of an Option shall be the date on which the Committee makes
the determination of granting such Option or such later date as designated by
the Committee.
<PAGE>
<PAGE>
<PAGE> EX-8
Optionee:
Option Shares:
(number of shares of
Common Stock)
Purchase Price
per share:
Date of Option Grant:
First Anniversary
Date:
Expiration Date:
CARBONIC INDUSTRIES CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
("Option Agreement")
SECTION I
GRANT
Carbonic Industries Corporation ("Corporation") hereby grants to the
optionee set forth above ("Optionee") an incentive stock option ("Option")
within the meaning of Section 422 of the Internal Revenue Code to purchase the
number of shares of common stock $2.00 par value, of the Corporation set forth
above (collectively "Option Shares") on the terms and conditions herein set
forth and the provisions of the Carbonic Industries Corporation 1994 Stock
Option Plan, as amended from time to time ("Plan"). The purchase price of
each such share shall be the Purchase Price set forth above. The Option shall
expire on the Expiration Date set forth above, unless sooner terminated as
provided in Section III or Section X of this Option Agreement or Paragraphs V
and VI of the Plan. To the extent the Option does not qualify as an incentive
stock option it shall be treated as options which are not incentive stock
options.
Each term used herein shall have the same meaning as provided in the
Plan unless herein otherwise provided. The Option is granted pursuant to the
Plan.
SECTION II
EXERCISE OF THE OPTION
The Option granted hereunder may be exercised at any time and from time
to time during the period commencing from the date the Option was granted
until the date the Option expires provided and to the extent that this Option
has vested and is exercisable as provided hereinafter and in the Plan. To the
extent any Option Shares do not vest prior to the termination of the Option
for any reason, such Option Shares may not be acquired hereunder.
SECTION III
EARLY TERMINATION OF OPTION
The provisions of Sections I and II of this Option Agreement
notwithstanding, this Option may not be exercised in whole or in part more
than three (3) months following the date of the termination of employment with
the Corporation, any Subsidiary or Parent of the Optionee for any reason,
other than disability (within the meaning of the Plan) or death of the
Optionee while an employee of the Corporation or any Subsidiary or Parent,
whether by reason of resignation or discharge or retirement, and more than
twelve (12) months following the date of termination of employment of the
Optionee with the Corporation, any Subsidiary or Parent, in the event the
<PAGE> EX-9
termination of employment is due to death or, as determined by the Committee
in its sole discretion, to such disability of the Optionee.
SECTION IV
VESTING OF OPTION
The Option hereby granted shall vest only during the Optionee's
continuous employment with the Corporation and/or any Parent and/or any
Subsidiary, and shall be exercisable only upon and after such vesting and
prior to its termination, by Optionee in accordance with the following
schedule:
20% of the Option Shares Commencing on the first (1st)
anniversary of the
grant of the Option
Additional 20% of Commencing on the second (2nd)
the Option Shares anniversary of the grant of the
Option
Additional 20% of Commencing on the third (3rd)
the Option Shares anniversary of the grant of the
Option
Additional 20% of Commencing on the fourth (4th)
the Option Shares anniversary of the grant of the
Option
Additional 20% of Commencing on the fifth (5th)
the Option Shares anniversary of the grant of the
Option
Notwithstanding the foregoing provisions of this Section IV, in the
event of a Change in Control (as hereinafter defined) during the Optionee's
employment with the Corporation and/or any Parent and/or any Subsidiary, the
Option hereby granted shall vest with respect to all of the Option Shares
immediately prior to such Change in Control.
The term "Change in Control" shall mean:
(i) The acquisition (other than from the Corporation) by any
person, entity or "group" within the meaning of Sections 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934 ("34 Act") (excluding, for this
purpose, the Corporation, its Parent or its Subsidiaries, or any employee
benefit plan of the Corporation, its Parent or its Subsidiaries) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the 34 Act) of
more than 50% of either the then outstanding shares of common stock of the
Corporation or of the combined voting power of the Corporation's then
outstanding voting securities entitled to vote generally in the election of
directors; or
(ii) Individuals who, as of the date hereof, constitute the
board of directors of the Corporation ("Incumbent Board") cease for any reason
to constitute at least a majority of the board of directors, provided that any
individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Corporation's shareholders, was approved by
a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual is a member of the
Incumbent Board; or
<PAGE> EX-10
(iii) Approval by the shareholders of the Corporation of a
merger, consolidation or other reorganization in each case, with respect to
which persons who were the shareholders of the Corporation and optionees
immediately prior to such merger, consolidation or other reorganization,
immediately thereafter, do not own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the merged,
consolidated or reorganized corporation's then outstanding voting securities,
or of the sale of all or substantially all of the assets of the
Corporation; provided, however, in such event the Change in Control will be
deemed to have occurred immediately prior to the merger, consolidation or
other reorganization.
SECTION V
TRANSFER
The Option may not be transferred except by will or the laws of descent
and distribution and may be exercised only by Optionee during the lifetime of
the Optionee. More particularly, but without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as permitted in
Section VI), pledged or hypothecated in any way (whether by operation of law
or otherwise). The Option shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation,
or other disposition of the Option contrary to the provisions hereof, and the
levy of any attachment or similar process on the Option, shall be null and
void and without effect.
SECTION VI
DEATH OF OPTIONEE
In the event of Optionee's death, the Option may be exercised by the
legal representatives of the estate of Optionee or by the person or persons to
whom Optionee's rights under the Option shall have passed by will or by the
laws of descent and distribution.
SECTION VII
TOTAL OR PARTIAL EXERCISE
The portion of the Option which has vested and is exercisable may be
exercised either at one time as to the total number of such Option Shares or
may be exercised from time to time as to any portion thereof prior to the
termination of the Option.
SECTION VIII
NOTICE OF EXERCISE; ISSUANCE OF CERTIFICATES
Subject to the terms and conditions of the Option, the vested portions
of the Option may be exercised by written notice to the Corporation, at its
principal office at Carbonic Industries Corporation, 3700 Crestwood Parkway,
Suite 200, Duluth, Georgia 30136-5583, or such other place designated in
writing by the Corporation from time to time to the Optionee. Such notice
shall state the election to exercise the Option and the number of Shares in
respect of which it is being exercised, and shall be signed by the person so
exercising the Option. Such notice shall be accompanied by a certified or
bank cashier's check payable to the order of the Corporation or other
consideration approved by the Board of Directors for the full purchase price
of the Shares in respect of which the Option is being exercised. The
certificate or certificates representing the Shares shall be issued and
delivered by the Corporation as soon as practicable after receipt of the
notice and payment. Such certificate or certificates shall be registered in
the name of the person so exercising the Option and, if the Option shall be
exercised by Optionee and the Optionee shall so request in the notice
exercising the Option, such certificate or certificates shall be registered in
the name of Optionee and another person jointly, with right of survivorship,
and shall be delivered to or on the written order of the person or persons
exercising the Option. In the event the Option is being exercised pursuant to
Section VI hereof, by any person or persons other than Optionee, the notice
shall be accompanied by appropriate proof of the right of such person or
persons to exercise the Option.
<PAGE> EX-11
SECTION IX
ISSUANCE AND TRANSFER OF SHARES
Subject to the provisions of Paragraph VI of the Plan, in the event the
issuance or transfer of the shares covered by the Option may, in the opinion
of counsel to the Corporation, conflict or be inconsistent with any applicable
law or regulation of any governmental agency having jurisdiction, the
Corporation reserves the right to refuse or to delay the issuance or transfer
of such shares.
SECTION X
ADJUSTMENT, MODIFICATIONS OR TERMINATION UPON RECAPITALIZATION
In the event of a merger, consolidation, reorganization,
recapitalization, reclassification of stock, stock dividend, split-up or other
change in the corporate structure or capitalization of the Corporation
affecting the Corporation's common stock as presently constituted or the
liquidation or dissolution of the Corporation, the Option shall be adjusted,
modified or terminated as provided in or pursuant to the provisions of
Paragraph V of the Plan.
SECTION XI
GOVERNING LAW
This option grant shall be governed by the laws of the State of
Georgia.
CARBONIC INDUSTRIES CORPORATION
By:
Name:
Title:
Date of Option Grant:
OPTIONEE ACKNOWLEDGEMENT
I have read the above Incentive Stock Option Agreement and the Carbonic
Industries Corporation 1994 Stock Option Plan (the "Plan") and hereby accept
the above Option to purchase shares of the common stock of the Corporation in
accordance with and subject to the terms and conditions of the Incentive Stock
Option Agreement and the Plan with which I am familiar and I agree to be bound
thereby. I further understand that (i) any rule, regulation and
determination, including interpretation by the Board of Directors or Committee
regarding the Plan, the Options granted thereunder and the exercise thereof
shall be final, conclusive and binding for all purposes and on all persons
including the Corporation and myself; and (ii) the grant of the Option to me
shall not affect in any way the Corporation and/or its Subsidiary and/or
Parent's right to terminate my employment for any reason or constitute an
agreement by me to remain in the employ of the Corporation or the Subsidiary
or its Parent for any specified term.
OPTIONEE -
Acceptance Date: As of
<PAGE>
<PAGE>
<PAGE> EX-12
EXHIBIT 5
June 2, 1997
VIA FEDERAL EXPRESS
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Airgas, Inc.
Registration Statement on Form S-8
Dear Sir or Madam:
We have acted as counsel to Airgas Inc. (the "Company"), a Delaware
corporation, in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Registration Statement.
The Registration Statement covers 196,571 shares (the "Shares") of the
Company's Common Stock which may be issued by the Company upon exercise of
options granted under the Carbonic Industries Corporation 1994 Stock Option
Plan (the "Plan"), which options were assumed by the Company upon the merger
of Carbonic Industries Corporation with and into a wholly-owned subsidiary
of the Company. We have examined the Registration Statement, including the
exhibits thereto, the Company's Certificate of Incorporation, as amended, the
Company's Bylaws, the Plan and related form of stock option agreement. In the
foregoing examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the
authenticity of all documents submitted to us as copies of originals.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and paid for in accordance with the terms of, and upon exercise of, the
options granted under the Plan and the option agreements executed pursuant to
the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
McCAUSLAND, KEEN & BUCKMAN
By: /S/Nancy D. Weisberg
_________________________________
Nancy D. Weisberg, Vice President
<PAGE>
<PAGE>
<PAGE> EX-13
Consent of Independent Auditors
The Board of Directors
Airgas, Inc.:
We consent to the use of our report included in the Company's annual report on
Form 10-K for the fiscal year ended March 31, 1996 which has been incorporated
herein by reference.
KPMG Peat Marwick LLP
Philadelphia, PA
May 30, 1997<PAGE>
