sctota.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
(RULE 14d-100)
Tender
Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1) of
the
Securities Exchange Act of 1934
(Amendment
No. 1)
AIRGAS,
INC.
(Name
of Subject Company)
AIR
PRODUCTS DISTRIBUTION, INC.
(Offeror)
AIR
PRODUCTS AND CHEMICALS, INC.
(Parent
of Offeror)
(Names
of Filing Persons)
COMMON
STOCK, $0.01 PAR VALUE
(Title
of Class of Securities)
009363102
(Cusip
Number of Class of Securities)
John
D. Stanley, Esq.
Senior
Vice President and General Counsel
Air
Products and Chemicals, Inc.
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
(610) 481-4911
(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and
Communications on Behalf of Filing Persons)
Copies
to:
James
C. Woolery, Esq.
Cravath,
Swaine & Moore
Worldwide
Plaza
825
Eighth Avenue
New
York, New York 10019-7475
(212) 474-1000
CALCULATION
OF FILING FEE
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Transaction
Valuation*
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Amount
of Filing Fee**
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$
4,963,777,380.00
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$
353,917.33
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*
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Estimated
for purposes of calculating the amount of filing fee only. Transaction
value derived by multiplying 82,729,623 (number of shares of common stock
of subject company (which represents the number of shares issued and
outstanding as of February 3, 2010, as reported in the subject
company’s Quarterly Report on Form 10-Q filed on February 8,
2010)) by $60.00 (the purchase price per share offered by
Offeror).
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The
filing fee was calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934 and Fee Rate Advisory #4 for fiscal year
2010, issued December 17, 2009, by multiplying the transaction value
by .00007130.
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Check box if any part
of the fee is offset as provided by Rule 0-11(a)(2) and identify the
filing with which the offsetting fee was previously paid. Identify the
previous filing by registration statement number, or the Form or Schedule
and the date of its filing. |
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Amount
Previously Paid:
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$ 353,917.33
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Filing
Party:
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Air Products
Distribution, Inc./Air Products and Chemicals, Inc. |
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Form
or Registration No.:
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Schedule
TO
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Date
Filed:
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February
11, 2010
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o
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
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Check the
appropriate boxes below to designate any transactions to which the statement
relates:
þ third-party
tender offer subject to Rule 14d-1.
o issuer
tender offer subject to Rule 13e-4.
o going-private
transaction subject to Rule 13e-3.
o amendment to
Schedule 13D under Rule 13d-2.
Check the
following box if the filing is a final amendment reporting the results of the
tender offer. o
If
applicable, check the appropriate box(es) below to designate the appropriate
rule provision(s) relied upon:
o Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
o Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
This
Amendment No. 1 to the Tender Offer Statement on Schedule TO amends and
supplements the Tender Offer Statement on Schedule TO filed with the
Securities and Exchange Commission on February 11, 2010 (together with any
amendments and supplements thereto, the “Schedule TO”) by Air Products and
Chemicals, Inc., a Delaware corporation (“Air Products”), and Air Products
Distribution, Inc. (the “Purchaser”), a Delaware corporation and a wholly owned
subsidiary of Air Products. The Schedule TO relates to the offer
by the Purchaser to purchase all outstanding shares of common stock, par value
$0.01 per share (together with the associated preferred stock purchase rights,
the “Shares”), of Airgas, Inc., a Delaware corporation (“Airgas”), at $60.00 per
Share, net to the seller in cash, without interest and less any required
withholding taxes, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated February 11, 2010 (together with any amendments
and supplements thereto, the “Offer to Purchase”), and in the related Letter of
Transmittal (which, together with any amendments and supplements thereto,
collectively constitute the “Offer”).
Item
4
Item 4 of
the Schedule TO is hereby amended and supplemented as follows:
(1) The
Purchaser shall make all determinations regarding the matters referred to in the
Impairment Condition in its reasonable judgment.
(2) The
Purchaser shall not assert a failure of the condition to the Offer relating to
Airgas’s declaration or payment of dividends (set forth in clause (e) of
paragraph (vi) of Section 14 of the Offer to Purchase) solely as a result of the
declaration and payment by Airgas of the dividend of $0.22 per share
of Common Stock declared on January 28, 2010 and payable on March 31, 2010 to
Airgas stockholders of record as of March 15, 2010.
(3) In
the event that the Purchaser makes any change in the offer price or other terms
of the Offer, including the number or type of securities offered to be
purchased, it will inform Airgas’s stockholders of this development and extend
the expiration date of the Offer, in each case to the extent required by
applicable law.
(4) In
the Schedule 14D-9 filed by Airgas with the SEC on February 22, 2010, Airgas
reported that the Airgas Board had 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 above) and (ii) such date as may be determined by the Airgas
Board. Unless the Distribution Date occurs, a tender of shares of
Common Stock will include a tender of the associated Rights. If the
Distribution Date does occur, Airgas stockholders will need to tender one Right
with each share of Common Stock tendered in order for such share to be validly
tendered in the Offer. The Purchaser will not pay any additional
consideration for the tender of a Right.
Item
5
Item 5 of
the Schedule TO is hereby amended and supplemented as follows:
On March
1, 2010, Lawrence S. Smith, a member of Air Products’ board of
directors, contacted John van Roden, a member of the Airgas Board, by telephone
to reiterate Air Products’ invitation to
meet to discuss the Offer. Mr. van Roden declined to engage with Mr.
Smith on the matter.
Item
7
Item 7 of
the Schedule TO is hereby amended and supplemented as follows:
On March 3, 2010, Air Products entered
into an amended and restated commitment letter (the “Amended and Restated
Commitment Letter”) with JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc. with respect to the Acquisition Facility and letters of accession (the
“Accession Letters”) with The Royal Bank of Scotland plc and RBS Securities
Inc., Deutsche Bank AG Cayman Island Branch and Deutsche Bank Securities Inc.,
BNP Paribas and BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and
HSBC Bank USA, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. pursuant to which
such banks joined the Amended and Restated Commitment Letter as
parties. Pursuant to the Amended and Restated Commitment Letter and
these Accession Letters, JPMorgan Chase Bank, N.A., The Royal Bank of Scotland
plc, Deutsche Bank AG Cayman Island Branch, BNP Paribas, HSBC Bank USA, N.A. and
The Bank of Tokyo-Mitsubishi UFJ, Ltd. have committed to provide the Acquisition
Facility to Air Products in an aggregate amount of up to $6.724
billion. The Amended and Restated Commitment Letter replaces JPMorgan
Chase Bank, N.A.’s original commitment letter with respect to the Acquisition
Facility (the “Original Commitment Letter”). The terms and conditions
of the Amended and Restated Commitment Letter with respect to the Acquisition
Facility remain substantially the same as pursuant to the Original Commitment
Letter and as described in the Offer to Purchase. Copies of the
Amended and Restated Commitment Letter and the Accession Letters are filed
as an exhibit to this Schedule TO.
No alternative financing arrangements
are in place at this time.
Item
11
Item 11
of the Schedule TO is hereby amended and supplemented as follows:
(1) On
February 22, 2010, Airgas filed a Solicitation/Recommendation Statement on
Schedule 14D-9 with the SEC, reporting that the board of directors of Airgas
unanimously recommends that Airgas’s stockholders reject the Offer and not
tender their Shares pursuant to the Offer.
(2) On
February 11, 2010, Air Products filed an amended complaint that included
additional facts relevant to Air Products’ claims and that
added a new cause of action seeking a declaration that Cravath is not
disqualified from advising and representing Air Products in connection with the
proposed transaction or any litigation relating to the proposed
transaction. On February 15, 2010, Air Products filed an Application
for a Determination that Cravath, Swaine & Moore LLP May Continue to Serve
as its Counsel and Appear in this Case on Behalf of Air Products. On
March 5, 2010, after considering relevant submissions from both parties, the
Delaware Court of Chancery granted Cravath’s application and
declared that Cravath may continue to serve as Air Products' counsel.
(3) On
February 12, 2010, the Pennsylvania Action was removed to the United States
District Court for the Eastern District of Pennsylvania, captioned as Airgas,
Inc. v. Cravath, Swaine & Moore LLP, Civil Action No. 10-612 (the “Federal
Action”). On February 22, 2010 the federal court granted Cravath’s
motion to stay the Federal Action in order to allow the Delaware court to
determine whether Cravath is disqualified from representing Air Products in the
Delaware Action. The federal court has scheduled a status and
scheduling conference for June 23, 2010.
(4) On
February 9, 2010, an Airgas stockholder commenced a putative class action
lawsuit against Airgas and the members of the Airgas Board in the Court of
Chancery in the State of Delaware. In the action, captioned
Montgomery County Employees’ Retirement Fund v. Peter McCausland, et al., Civil
Action No. 5259 (the “Montgomery Stockholder Class Action”), the plaintiff
alleges, among other things, that the Airgas Board violated its fiduciary duties
to Airgas stockholders by refusing to consider Air Products’
overtures. On behalf of all Airgas stockholders, the plaintiff seeks
relief that includes, among other things, an order directing the Airgas Board to
evaluate alternatives to maximize value and enjoining the members of the Airgas
Board “from taking any further action designed to frustrate any potential
transaction that would maximize shareholder value”.
On February 9, 2010, an Airgas
stockholder commenced a putative class action lawsuit against the members of the
Airgas Board in the Court of Chancery in the State of Delaware. In
the action, captioned Policemen’s Annuity and Benefit Fund of Chicago v. Peter
McCausland, et al., Civil Action No. 5263 (the “Chicago Policemen’s Stockholder
Class Action”), the plaintiff alleges that the Airgas Board violated its
fiduciary duties to Airgas stockholders by, among other things, failing to
discuss Air Products’ offer with Air Products. On behalf of all
Airgas stockholders, the plaintiff seeks relief that includes, among other
things, an order declaring that the Airgas directors breached their fiduciary
duties and requiring the Airgas directors to form a special committee of
independent directors to consider and negotiate Air Products’ proposal, and
other potential proposals, in good faith.
On February 9, 2010, an Airgas
stockholder commenced a putative class action lawsuit against the members of the
Airgas Board in the Court of Chancery in the State of Delaware. In
the action, captioned City of Pontiac General Employees’ Retirement System and
City of Pontiac Policemen’s & Firemen’s Retirement System v. Peter
McCausland, et al., Civil Action No. 5262 (the “Pontiac Stockholder Class
Action”), the plaintiff alleges, among other things, that the Airgas Board has
breached its fiduciary duties. On behalf of all Airgas stockholders,
the plaintiff seeks, among other things, an order declaring that the Airgas
directors breached their fiduciary duties and enjoining the Airgas Board from
refusing to respond in good faith to acquisition offers that would maximize
value and from taking further defensive measures that would render completing
the acquisition more burdensome or expensive for a potential
acquirer.
On February 10, 2010, an Airgas
stockholder commenced a putative class action lawsuit against Airgas and the
members of the Airgas Board in the Court of Chancery in the State of
Delaware. In the action, captioned Louisiana Municipal Police
Employees’ Retirement System v. Airgas, Inc., et al., Civil Action No. 5264 (the
“Louisiana Stockholder Class Action”), the plaintiff alleges, among other
things, that the Airgas Board violated its fiduciary duties to Airgas
stockholders by failing to consider Air Products’ proposals and failing to form
a special committee to evaluate the transaction. On behalf of all
Airgas stockholders, the plaintiff seeks relief that includes, among other
things, a declaration that the Airgas directors breached their fiduciary duties
and an injunction to prevent the Airgas directors “from placing their own
interests ahead of the interests of [Airgas] and its shareholders” or initiating
defensive measures that would inhibit the Board’s ability to maximize
value.
On February 16, 2010, an Airgas
stockholder commenced a putative class action lawsuit against the members of the
Airgas Board in the Court of Chancery in the State of Delaware. In
the action, captioned Plumbers’ Union Local No. 12 Pension Fund
v. W. Thacher Brown, et al., Civil Action No. 5271 (the “Plumbers’
Stockholder Class Action”), the plaintiff alleges, among other things, that the
Airgas Board violated its fiduciary duties to Airgas stockholders by
“disenfranchising” Airgas’s stockholders and failing to consider Air Products’
proposals. On behalf of all Airgas stockholders, the plaintiff seeks
relief that includes, among other things, an order declaring that the Airgas
directors breached their fiduciary duties and directing the Airgas directors “to
refrain from advancing their own interests at the expense of Airgas or its
shareholders” and invalidating or directing Airgas to redeem the
Rights.
On February 23, 2010, an Airgas
stockholder commenced a putative class action lawsuit against Airgas and the
members of the Airgas Board in the Court of Chancery in the State of
Delaware. In the action, captioned Steven L. Berzner v. Peter
McCausland, et al., Civil Action No. 5282 (the “ Berzner Stockholder Class
Action”), the plaintiff alleges, among other things, that the Airgas Board
violated its fiduciary duties to Airgas stockholders. On behalf of
all Airgas stockholders, the plaintiff seeks relief that includes, among other
things, an order directing the Airgas directors to fulfill their fiduciary
duties by undertaking an evaluation of alternatives to maximize value for
Airgas’s stockholders and enjoining them “from taking any further action
designed to frustrate any potential transaction that would maximize shareholder
value”.
On March 2, 2010, the Delaware court
consolidated these seven stockholder class actions into one action, captioned In
re Airgas, Inc. Stockholder Litigation, Civil Action No. 5256. On
March 3, 2010, co-lead plaintiffs Montgomery County Employees’ Retirement Fund,
City of Pontiac General Employees’ Retirement System, City of Pontiac Police
& Fire Retirement System, Policemen’s Annuity and Benefit Fund of Chicago,
and Plumbers Union Local No. 12 Pension Fund, filed a Verified Amended Class
Action Complaint in the action. Co-lead plaintiffs seek an order
directing the Airgas directors to fulfill their fiduciary duties by undertaking
an appropriate evaluation of alternatives to maximize value for Airgas’s
stockholders, and enjoining them “from taking any further action designed to
frustrate any potential transaction that would maximize shareholder
value”. On March
4, 2010, the co-lead plaintiffs in the consolidated action filed a motion to
expedite the proceedings in that action.
Item 12. Exhibits.
Item
12 of the Schedule
TO is hereby amended and supplemented as follows:
(a)(5)(iii) Text
of message from John McGlade, dated February 12, 2010 (incorporated by reference
to the Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and
Air Products Distribution, Inc. on February 12, 2010).
(a)(5)(iv) Transcript
of John McGlade and Paul Huck’s presentation at the Barclays 2nd Annual
Industrial Select Conference, dated February 17, 2010 (incorporated by reference
to the Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and
Air Products Distribution, Inc. on February 18, 2010).
(a)(5)(v) Text
of press release issued by Air Products, dated February 22, 2010 (incorporated
by reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on February 22,
2010).
(a)(5)(vi) Presentation
of Paul Huck at the Morgan Stanley Global Basic Materials Conference, dated
February 25, 2010 (incorporated by reference to the Schedule 14A filed with
the SEC by Air Products and Chemicals, Inc. and Air Products Distribution, Inc.
on February 25, 2010).
(a)(5)(vii) Transcript
of Paul Huck’s presentation at the Morgan Stanley Global Basic Materials
Conference, dated February 25, 2010 (incorporated by reference to the
Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and Air
Products Distribution, Inc. on March 2, 2010).
(a)(5)(viii) Text
of message from John McGlade, dated March 5, 2010 (incorporated by reference to
the Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and Air
Products Distribution, Inc. on March 5, 2010).
(a)(5)(ix)
Text of press release issued by Air Products, dated March 5, 2010 (incorporated
by reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on March 5,
2010).
(b)(2) Amended
and Restated Commitment Letter dated March 3, 2010 among Air Products and
Chemicals, Inc., JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc.
(b)(3) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., The Royal
Bank of Scotland plc and RBS Securities Inc.
(b)(4) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., Deutsche Bank
AG Cayman Island Branch and Deutsche Bank Securities Inc.
(b)(5) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., BNP Paribas
and BNP Paribas Securities Corp.
(b)(6) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., HSBC
Securities (USA) Inc. and HSBC Bank USA, N.A.
(b)(7) Accession
Letter dated March 3, 2010 between Air Products and Chemicals, Inc. and The Bank
of Tokyo-Mitsubishi UFJ, Ltd.
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.
Dated: March
5, 2010
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AIR PRODUCTS AND CHEMICALS,
INC. |
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By:
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/s/ John D. Stanley |
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Name: John
D. Stanley |
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Title:
Senior Vice President and General Counsel |
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AIR PRODUCTS DISTRIBUTION,
INC. |
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By:
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/s/ John D. Stanley |
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Name: John
D. Stanley |
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Title:
Secretary |
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EXHIBIT INDEX
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(a)(1)(i)
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Offer
to Purchase dated February 11, 2010.*
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(a)(1)(ii)
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Form
of Letter of Transmittal.*
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(a)(1)(iii)
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Form
of Notice of Guaranteed Delivery.*
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(a)(1)(iv)
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Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
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(a)(1)(v)
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Form
of Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
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(a)(1)(vi)
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Guidelines
for Certification of Taxpayer Identification Number on Substitute
Form W-9.*
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(a)(1)(vii)
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Form
of summary advertisement dated February 11, 2010.*
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(a)(5)(i)
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Text
of press release issued by Air Products, dated February 5,
2010.*
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(a)(5)(ii)
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Text
of press release issued by Air Products, dated February 11,
2010.*
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(a)(5)(iii)
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Text
of message from John McGlade, dated February 12, 2010 (incorporated by
reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on February 12,
2010).
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(a)(5)(iv)
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Transcript
of John McGlade and Paul Huck’s presentation at the Barclays 2nd Annual
Industrial Select Conference, dated February 17, 2010 (incorporated by
reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on February 18,
2010).
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(a)(5)(v)
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Text
of press release issued by Air Products, dated February 22, 2010
(incorporated by reference to the Schedule 14A filed with the SEC by Air
Products and Chemicals, Inc. and Air Products Distribution, Inc. on
February 22, 2010).
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(a)(5)(vi)
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Presentation
of Paul Huck at the Morgan Stanley Global Basic Materials Conference,
dated February 25, 2010 (incorporated by reference to the Schedule 14A
filed with the SEC by Air Products and Chemicals, Inc. and Air Products
Distribution, Inc. on February 25, 2010).
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(a)(5)(vii)
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Transcript
of Paul Huck’s presentation at the Morgan Stanley Global Basic Materials
Conference, dated February 25, 2010 (incorporated by reference to the
Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and
Air Products Distribution, Inc. on March 2, 2010).
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(a)(5)(viii)
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Text
of message from John McGlade, dated March 5, 2010 (incorporated by
reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on March 5,
2010).
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| (a)(5)(ix) |
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Text
of press release issued by Air Products, dated March 5, 2010 (incorporated
by reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on March 5,
2010).
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(b)(1)
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Commitment
letter described in Section 10, “Source and Amount of Funds” of the
Offer to Purchase.*
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(b)(2)
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Amended
and Restated Commitment Letter dated March 3, 2010 among Air Products and
Chemicals, Inc., JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc.
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(b)(3)
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Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., The
Royal Bank of Scotland plc and RBS Securities Inc.
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(b)(4)
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Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc.,
Deutsche Bank AG Cayman Island Branch and Deutsche Bank Securities
Inc.
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(b)(5)
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Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., BNP
Paribas and BNP Paribas Securities Corp.
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(b)(6)
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Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., HSBC
Securities (USA) Inc. and HSBC Bank USA, N.A.
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(b)(7)
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Accession
Letter dated March 3, 2010 between Air Products and Chemicals, Inc. and
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
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(d)
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Not
applicable.
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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