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Airgas Complaint Against Air Products

Airgas Complaint Against Air Products

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Published by DealBook
Complaint by Airgas against Air Products and Chemicals about the Air Products proposal to change the Airgas annual meeting date.
Complaint by Airgas against Air Products and Chemicals about the Air Products proposal to change the Airgas annual meeting date.

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Published by: DealBook on Sep 16, 2010
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09/30/2010

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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)AIRGAS, INC., JAMES HOVEY, PAULASNEED, DAVID STOUT, LEE THOMAS,JOHN VAN RODEN and ELLEN WOLF,))))
Plaintiffs
, )) C.A. No. 5817-__v. ))AIR PRODUCTS AND CHEMICALS, INC., ))
 Defendant 
. ))
VERIFIED COMPLAINT
Plaintiff Airgas, Inc. (“Airgas”), a Delaware corporation, together with individualplaintiffs James Hovey, Paula Sneed, David Stout, Lee Thomas, John van Roden, and Ellen Wolf (collectively, “Plaintiffs”), by their undersigned attorneys, for their complaint for declaratory re-lief, allege as follows:
NATURE OF THE CASE
1.This is an action seeking a declaration that a purported amendment to Air-gas’ bylaws proposed by Air Products (the “Air Products Bylaw”) conflicts with both the Dela-ware General Corporation Law and Airgas’ Certificate of Incorporation (the “Airgas Charter”)and is accordingly invalid.2.The Air Products Bylaw purports to set the date of Airgas2011 annualmeeting for January 18, 2011, 240 days before the one-year anniversary of the company’s 2010annual meeting, and to require Airgas to hold all future annual meetings in the month of January.If enforced, the bylaw would require Airgas to hold two annual meetings in a span of four
 
2months and would cause the terms of the Airgas directors who were elected at Airgas’ 2008 and2009 annual meetings to be improperly shortened.3.The Air Products Bylaw thus conflicts with the General Corporation Law.Section 141(d) mandates that, absent removal, directors are elected to serve a “full term,” whichas Section 141(d) makes clear, is approximately three years. And the bylaw is also entirely atodds with fundamental and well-recognized principles of Delaware law—most pertinently, themandate that an “annual meeting” to elect directors must be held annually, or yearly—not, as AirProducts contends, twice in four months.4.The Air Products Bylaw is also invalid because it conflicts with the AirgasCharter, which requires the approval of 67% of the voting power of the company to amend Ar-ticle III of the bylaws. The Air Products Bylaw, which amends Article III’s provisions relatingto the election and terms of directors, purports to be effective upon adoption by only a simplemajority of Airgas stockholders voting at a meeting.5.The Air Products Bylaw is a self-interested and manipulative gimmick, isinvalid on its face and as applied, and is of no force and effect.
PARTIES
6.Plaintiff Airgas is a corporation duly organized under the laws of the stateof Delaware, with its principal place of business at 259 North Radnor-Chester Road, Suite 100,Radnor, Pennsylvania. Airgas is the largest U.S. supplier of industrial, medical and specialtygasses and related hardgoods, such as welding supplies, and has built the largest national distri-bution network in the packaged gas industry. Airgas has also become a leading U.S. distributorof safety products, the largest U.S. producer of nitrous oxide and dry ice, the largest liquid car-
 
3bon dioxide producer in the Southeast and a leading distributor of process chemicals, refrigerantsand ammonia products. Airgas has more than 14,000 employees who work in more than 1,100locations, including branches, cylinder fill plants, air separation plants, production facilities, spe-cialty gas laboratories, and regional distribution centers.7.Plaintiff James Hovey is, and at all relevant times was, a member of theAirgas Board of Directors. He was elected to the Board on August 3, 2000, and re-elected onJuly 29, 2003, August 9, 2006, and August 18, 2009.8.Plaintiff Paula Sneed is, and at all relevant times was, a member of theAirgas Board of Directors. She was appointed to the Board in August, 1999, elected to theBoard on August 3, 2000, and re-elected on July 29, 2003, August 9, 2006, and August 18, 2009.9.Plaintiff David Stout is, and at all relevant times was, a member of theAirgas Board of Directors. He was appointed to the Board in August, 1999, elected to the Boardon August 3, 2000, and re-elected on July 29, 2003, August 9, 2006, and August 18, 2009.10.Plaintiff Lee Thomas is, and at all relevant times was, a member of theAirgas Board of Directors. He was elected to the Board on August 2, 1999, and re-elected onJuly 31, 2002, August 9, 2005, and August 5, 2008.11.Plaintiff John van Roden is, and at all relevant times was, a member of theAirgas Board of Directors. He was elected to the Board on August 7, 2007, and re-elected onAugust 5, 2008.

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