Exhibit 10.1





Exhibit 10.1




AIRGAS, INC.




$400,000,000




4.50% Notes due 2014




UNDERWRITING AGREEMENT




September 8, 2009




Banc of America Securities LLC

Barclays Capital Inc.

J.P. Morgan Securities Inc.




 


 









 







Underwriting Agreement




September 8, 2009




BANC OF AMERICA SECURITIES LLC

BARCLAYS CAPITAL INC.

J.P. MORGAN SECURITIES INC.





As Representatives of the several Underwriters



c/o BANC OF AMERICA SECURITIES LLC

One Bryant Park

New York, NY 10036




Ladies and Gentlemen:




Introductory. Airgas, Inc., a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule A (the “Underwriters”), acting
severally and not jointly, the respective amounts set forth in such Schedule A of $400,000,000
aggregate principal amount of the Company’s 4.50% Notes due 2014 (the “Notes”). The Notes
will be unconditionally guaranteed on a senior basis as to the payment of principal, premium, if
any, and interest (the “Guarantees”) by each of the subsidiaries of the Company named in
Schedule B hereto (collectively, the “Guarantors”). The Notes and the Guarantees are
hereinafter collectively called the “Securities.” Banc of America Securities LLC
(“BAS”), Barclays Capital Inc. and J.P. Morgan Securities Inc. have agreed to act as
representatives of the several Underwriters (in such capacity, the “Representatives”) in
connection with the offering and sale of the Securities.



The Securities will be issued pursuant to an indenture, dated as of September 11, 2009 (the
“Base Indenture”), among the Company, the Guarantors and The Bank of New York Mellon, as
trustee (the “Trustee”). Certain terms of the Securities will be established pursuant to a
supplemental indenture (the “Supplemental Indenture”) to the Base Indenture (together with
the Base Indenture, the “Indenture”). The Securities will be issued in bookentry form in
the name of Cede & Co., as nominee of The Depository Trust Company (the “Depositary”),
pursuant to a Blanket Letter of Representations, to be dated on or before the Closing Date (as
defined in Section 2 below) (the “DTC Agreement”), between the Company and the Depositary.



The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-161774), which contains a
base prospectus (the “Base Prospectus”), to be used in connection with the public offering
and sale of debt securities, including the Securities, and other securities of the Company under
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act. Such registration statement, including the
financial statements, exhibits and schedules thereto, in the form in which it became effective
under the Securities Act, including any required information deemed to be a part thereof at the
time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
“Registration Statement.” The term “Prospectus” shall mean the final prospectus
supplement relating to the Securities, together



 


 









 






with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time
that this Agreement is executed (the “Execution Time”) by the parties hereto. The term
“Preliminary Prospectus” shall mean any preliminary prospectus supplement relating to the
Securities, together with the Base Prospectus, that is first filed with the Commission pursuant to
Rule 424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to
3:10 p.m. on September 8, 2009 (the “Initial Sale Time”). All references in this Agreement
to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).



All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be,
after the Initial Sale Time.



The Company and the Guarantors hereby confirm their agreements with the Underwriters as
follows:



SECTION 1. Representations and Warranties of the Company and the Guarantors. The Company and
each Guarantor, jointly and severally, hereby represents, warrants and covenants to each
Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in each
case, a “Representation Date”), as follows:



(a) Compliance with Registration Requirements. The Company and the Guarantors meet the
requirements for use of Form S-3 under the Securities Act. The Registration Statement has become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, are contemplated or
threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the
“Trust Indenture Act”).



At the respective times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement and any amendments
thereto (i) complied and will comply in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue



 


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statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date of the Prospectus and at the
Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions from the Registration Statement or
any post-effective amendment or the Prospectus or any amendments or supplements thereto made in
reliance upon and in conformity with information furnished to the Company in writing by any of the
Underwriters through the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter through the Representatives consists of
the information described as such in Section 8 hereof.



Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC,
complied in all material respects with the Securities Act, and the Preliminary Prospectus and the
Prospectus delivered to the Underwriters for use in connection with the offering of the Securities
will, at the time of such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.



(b) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary
Prospectus dated September 8, 2009, (ii) the issuer free writing prospectuses as defined in Rule
433 of the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified
in Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial
Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.



(c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the
time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.



(d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective



 


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amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the
Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule 405 of the
Securities Act. The Registration Statement is an “automatic shelf registration statement,” as
defined in Rule 405 of the Securities Act, that automatically became effective not more than three
years prior to the Execution Time; the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration form.



(e) Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.



(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Securities under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Preliminary Prospectus or the Prospectus the Company
has promptly notified or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter through the Representatives consists of the information described as
such in Section 8 hereof.



(g) Distribution of Offering Material by the Company. Neither the Company nor the Guarantors
have distributed or will distribute, prior to the later of the Closing Date and the completion of
the Underwriters’ distribution of the Securities, any offering material in connection with the
offering and sale of the Securities other than (i) the Preliminary Prospectus, (ii) the Prospectus,
(iii) any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and
included in Annex I hereto, (iv) the Registration Statement or (v) any electronic road show or
other written communications reviewed and consented to by the Representatives and included in Annex
II hereto (collectively, “Company Additional Written Communication”). Each such Company
Additional Written Communication, when taken together with the Disclosure Package, did not, and at
the Closing Date will not, contain any untrue statement of a mate-



 


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rial fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or omissions from each such
Company Additional Written Communication made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the Representatives expressly for
use in any Company Additional Written Communication, it being understood and agreed that the only
such information furnished by any Underwriter through the Representatives consists of the
information described as such in Section 8 hereof.



(h) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.



(i) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.



(j) Authorization of the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the Company and each
Guarantor and constitutes a valid and binding agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles.



(k) Authorization of the Notes. The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly authorized for issuance and
sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of creditors or by general
equitable principles, and will be entitled to the benefits of the Indenture.



(l) Authorization of the Guarantees. Each of the Guarantees is in the form contemplated by
the Indenture, has been duly authorized for issuance and sale pursuant to this Agreement and the
Indenture and, at the Closing Date, will have been duly executed by such Guarantor and, when the
Notes are authenticated in the manner provided for in the Indenture and delivered against payment
of the purchase price for the Notes, will constitute a valid and binding obligation of such
Guarantor, enforceable in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable
principles, and will be entitled to the benefits of the Indenture.



(m) No Material Adverse Effect. None of the Company, the Guarantors or any of their
respective subsidiaries has sustained since the date of the latest
audited financial statements in-



 


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cluded in the Disclosure Package any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which loss or interference is material to the
business of the Company and the Guarantors, taken as a whole, otherwise than as set forth or
contemplated in the Disclosure Package and the Prospectus; and, since the respective dates as of
which information is given in the Disclosure Package and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company, the Guarantors or any of their
respective subsidiaries or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company, the Guarantors and their respective
subsidiaries, taken as a whole (a “Material Adverse Effect”), otherwise than as set forth
or contemplated in the Disclosure Package and the Prospectus.



(n) Title to Properties. Each of the Company, the Guarantors and their respective
subsidiaries has good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them and material to the business of the Company
and the Guarantors, taken as a whole, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Disclosure Package and the Prospectus or such as do not
materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company, the Guarantors or their respective
subsidiaries; and any real property and buildings held under lease by the Company, the Guarantors
or their respective subsidiaries and material to the business of the Company, the Guarantors and
their respective subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company, the Guarantors and their respective
subsidiaries.



(o) Incorporation and Good Standing of the Company and the Guarantors. Each of the Company
and the Guarantors has been duly incorporated or organized and is validly existing and in good
standing under the laws of its state of incorporation or organization, with power and authority
(corporate and other) to own its properties and conduct its business as described in the Disclosure
Package and the Prospectus, and each such entity has been duly qualified as a foreign corporation
or similar entity for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each subsidiary of the Company and the Guarantors
has been duly incorporated or organized and is validly existing as a corporation or similar entity
in good standing under the laws of its jurisdiction of incorporation or organization.



(p) Capital Stock. All of the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and nonassessable; and all of the issued
shares of capital stock of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and (except for directors’ qualifying shares and except as
otherwise set forth in the Disclosure Package and the Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims other than as
described in the Disclosure Package and the Prospectus.


 


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(q) Regulations T, U and X. None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the Securities) will
violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System



(r) No Price Stabilization or Manipulation. Prior to the date hereof, none of the Company,
the Guarantors or any of their respective affiliates has taken any action which is designed to or
which has constituted or which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company or any Guarantor in connection with the
offering of the Securities.



(s) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. The issue and sale of the Securities and the compliance by the Company and the
Guarantors with all of the provisions of the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not conflict with or result
in a breach or violation of (i) any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company, the Guarantors or any of their respective subsidiaries is a party or by which the
Company, the Guarantors or any of their respective subsidiaries is bound or to which any of the
property or assets of the Company, the Guarantors or any of their respective subsidiaries is
subject, (ii) any of the provisions of the Certificate of Incorporation, By-laws or similar
organizational documents of the Company or any Guarantor or (iii) any existing statute, order, rule
or regulation of any court or governmental agency or body having jurisdiction over the Company, the
Guarantors or any of their respective subsidiaries or any of their properties, except, in the case
of clauses (i) and (iii) above, for such breaches or violations which would not, individually or in
the aggregate, have a Material Adverse Effect or prevent or be reasonably likely to prevent the
Company or the Guarantors from performing their respective obligations hereunder; and no consent,
approval, authorization or other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency is required for the Company’s or any Guarantor’s
execution, delivery and performance of this Agreement or consummation of the transactions
contemplated hereby, by the Disclosure Package or by the Prospectus, except such as have been
obtained or made by the Company and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority
(the “FINRA”). None of the Company, the Guarantors or any of their respective subsidiaries
is (i) in violation of its Certificate of Incorporation, By-laws or similar organizational
documents, (ii) in default in the performance or observance of any obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its properties may be
bound, or (iii) in violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except for, with respect to
clauses (ii) and (iii) only, defaults that, individually or in the aggregate, would not have a
Material Adverse Effect.



(t) Accuracy of Statements in the Prospectus. The statements set forth in the Preliminary
Prospectus and the Prospectus under the caption “Description of the Notes” and “Description of the
Debt Securities and Guarantees”, insofar as they purport to constitute a summary of the terms of
the Indenture and the Securities, and under the captions “Material U.S. Federal



 


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Tax Consequences” and “Description of Other Obligations”, insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate, complete and fair.



(u) No Material Proceedings. Other than as set forth in the Disclosure Package and the
Prospectus, there are no legal or governmental proceedings pending to which the Company, the
Guarantors or any of their respective subsidiaries is a party or of which any property of the
Company, the Guarantors or any of their respective subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.



(v) Investment Company Act. Neither the Company nor any of the Guarantors is and, after
giving effect to the offering and sale of the Securities, none will be an “investment company,” as
such term is defined in the United States Investment Company Act of 1940, as amended (the
“Investment Company Act”).



(w) No Business with Cuba. Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes.



(x) Independent Accountants. KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries, are an independent registered public accounting firm as required by
the Securities Act and the rules and regulations of the Commission thereunder and the rules and
regulations of the Public Company Accounting Oversight Board (United States); any non-audit
services provided by KPMG LLP to the Company or any of the Guarantors have been approved by the
Audit Committee of the Board of Directors of the Company.



(y) Sarbanes-Oxley Compliance. The Company and its subsidiaries and their respective officers
and directors are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002,
including the rules and regulations of the Commission promulgated thereunder.



(z) Disclosure Controls and Procedures. The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange
Act); such disclosure controls and procedures are designed to ensure that material information
relating to the Company and its subsidiaries is made known to the chief executive officer and chief
financial officer of the Company by others within the Company or any of its subsidiaries, and such
disclosure controls and procedures are reasonably effective to perform the functions for which they
were established, subject to the limitations of any such control system; the Company’s auditors and
the Audit Committee of the Board of Directors of the Company have been advised of: (i) any
significant deficiencies or material weaknesses in the design or operation of internal controls
which could adversely affect the Company’s ability to record, process, summarize and report
financial data; and (ii) any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls; and since the date of the most recent
evaluation of such disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly



 


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affect internal controls, other than any corrective actions, if any, with regard to
significant deficiencies.



(aa) Internal Controls and Procedures. The Company and its subsidiaries maintain a system of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that
is in compliance with the Sarbanes-Oxley Act and is sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.



(bb) Preparation of Financial Statements. The financial statements, together with the related
schedules and notes, included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus present fairly the consolidated financial position of the
entities to which they relate as of and at the dates indicated and the results of their operations
and cash flows for the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent basis throughout
the periods involved, except as may be expressly stated in the related notes thereto. The
financial data set forth or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus fairly present the information set forth therein on a
basis reasonably consistent with that of the audited financial statements contained or incorporated
by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus.



(cc) Compliance with Environmental Laws. Except as described in the Disclosure Package and
the Prospectus and except for those matters that would not, individually or in the aggregate,
result in a Material Adverse Effect, (i) each of the Company, the Guarantors and their respective
subsidiaries is in compliance with all applicable federal, state, local or foreign statutes, laws,
rules, regulations or ordinances relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) each of the
Company, the Guarantors and their respective subsidiaries has obtained and is in compliance with
all permits, authorizations and approvals required for the conduct of its operations under any
Environmental Laws and (iii) there are no pending or, to the Company’s or any Guarantor’s
knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigations or proceedings
relating to any Environmental Laws against the Company, the Guarantors or any of their respective
subsidiaries and (iv) there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency against or affecting the Company, the Guarantors or
any of their respective subsidiaries relating to Hazardous Materials or Environmental Laws.




 


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(dd) Accuracy of Exhibits. There are no franchises, contracts or documents which are required
to be described in the Registration Statement, the Disclosure Package, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits to the Registration
Statement which have not been so described and filed as required.



Any certificate signed by an officer of the Company or a Guarantor and delivered to the
Representatives or to counsel for the Underwriters shall be deemed to be a representation and
warranty by the Company or such Guarantor, as applicable, to each Underwriter as to the matters set
forth therein.




SECTION 2. Purchase, Sale and Delivery of the Securities.



(a) The Securities. Each of the Company and the Guarantors agrees to issue and sell to the
several Underwriters, severally and not jointly, all of the Securities upon the terms herein set
forth. On the basis of the representations, warranties and agreements herein contained, and upon
the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not
jointly, to purchase from the Company and the Guarantors the aggregate principal amount of
Securities set forth opposite their names on Schedule A at a purchase price of 99.28% of the
principal amount of the Securities, payable on the Closing Date.



(b) The Closing Date. Delivery of certificates for the Securities in global form to be
purchased by the Underwriters and payment therefor shall be made at the offices of Cahill Gordon &
Reindel llp, 80 Pine Street, New York, New York 10005 (or such other place as may be
agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on September
11, 2009, or such other time and date as the Underwriters and the Company shall mutually agree (the
time and date of such closing are called the “Closing Date”).



(c) Public Offering of the Securities. The Representatives hereby advise the Company and the
Guarantors that the Underwriters intend to offer for sale to the public, as described in the
Disclosure Package and the Prospectus, their respective portions of the Securities as soon after
the Execution Time as the Representatives, in their sole judgment, have determined is advisable and
practicable.



(d) Payment for the Securities. Payment for the Securities shall be made at the Closing Date
by wire transfer of immediately available funds to the order of the Company.



It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Securities that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Securities to be purchased
by any Underwriter whose funds shall not have been received by the Representatives by the Closing
Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter
from any of its obligations under this Agreement.



(e) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for the Securities at the
Closing Date, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Securities shall be in


 


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such denominations and registered in such names and denominations as the Representatives shall
have requested at least two full business days prior to the Closing Date and shall be made
available for inspection on the business day preceding the Closing Date at a location in New York
City, as the Representatives may designate. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the obligations of the
Underwriters.



SECTION 3. Covenants of the Company and the Guarantors. Each of the Company and the
Guarantors, jointly and severally, covenants and agrees with each Underwriter as follows:



(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period, (iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether
the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received
for filing by the Commission and, in the event that it was not, it will promptly file such
document. The Company will use its reasonable best efforts to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.



(b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Securities by an Underwriter or dealer, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery
Period”), the Company will give the Representatives notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule 462(b) of the
Securities Act), or any amendment, supplement or revision to the Disclosure Package or the
Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.



(c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits


 


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filed therewith or incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto (without exhibits) for
each of the Underwriters. The Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.



(d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge,
as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.



(e) Continued Compliance with Securities Laws. The Company and the Guarantors will comply
with the Securities Act and the Exchange Act so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Registration Statement, the Disclosure
Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall
occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the
Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the Initial Sale Time or at the time it is delivered
or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend the Registration Statement or amend or supplement the
Disclosure Package or the Prospectus in order to comply with the requirements of any law, the
Company will (1) notify the Representatives of any such event, development or condition and (2)
promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make the Registration
Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will
furnish to the Underwriters, without charge, such number of copies of such amendment or supplement
as the Underwriters may reasonably request.



(f) Blue Sky Compliance. The Company and the Guarantors shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the Securities for sale
under (or obtain exemptions from the application of) the state securities or blue sky laws of those
jurisdictions designated by the Representatives, shall comply with such laws and shall continue
such qualifications, registrations and exemptions in effect so long as required for the
distribution of the Securities. Neither the Company nor any Guarantor shall be required to qualify
to transact business or to take any action that would subject it to general service of process in
any such ju-



 


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risdiction where it is not presently qualified or where it would be subject to taxation as a
foreign business. The Company and the Guarantors will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such exemption relating to) the
Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, each of the Company and the Guarantors shall use its
reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.



(g) Use of Proceeds. The Company and the Guarantors shall apply the net proceeds from the
sale of the Securities sold by them in the manner described under the caption “Use of Proceeds” in
the Preliminary Prospectus and the Prospectus.



(h) Depositary. The Company and the Guarantors will cooperate with the Underwriters and use
their reasonable best efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of the Depositary.



(i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company and
the Guarantors shall file, on a timely basis, with the Commission and the New York Stock Exchange
all reports and documents required to be filed under the Exchange Act.



(j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, neither the Company nor the Guarantors will, without
the prior written consent of the Representatives (which consent may be withheld at the sole
discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning
of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in respect of, any debt
securities of the Company or any Guarantor similar to the Securities or securities exchangeable for
or convertible into debt securities similar to the Securities (other than as contemplated by this
Agreement with respect to the Securities).



(k) Final Term Sheet. The Company will prepare a final term sheet containing only a
description of the Securities, in a form approved by the Underwriters and attached as Exhibit B
hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the
time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term
Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.



(l) Permitted Free Writing Prospectuses. Each of the Company and the Guarantors represents
that it has not made, and agrees that, unless it obtains the prior written consent of the
Representatives, it will not make, any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act) required to be filed by the Company or the Guarantors
with the Commission or retained by the Company or the Guarantors under Rule 433 of the Securities
Act; provided that the prior written consent of the Representatives shall be deemed to have been
given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement.
Any such free writing prospectus consented to or deemed to be consented to by the Representatives
is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the



 


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Company and the Guarantors agrees that (i) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities
Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping. Each of the Company and the Guarantors consents to
the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing
prospectus” as defined in Rule 433, and (b) contains only (i) information describing the
preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under
the Securities Act or (iii) information that describes the final terms of the Securities or their
offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k).



(m) Registration Statement Renewal Deadline. If immediately prior to the third anniversary
(the “Renewal Deadline”) of the initial effective date of the Registration Statement, any
of the Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline
file, if it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form satisfactory to the Representatives. If the
Company is no longer eligible to file an automatic shelf registration statement, the Company will
prior to the Renewal Deadline, if it has not already done so, file a new shelf registration
statement relating to the Securities, in a form satisfactory to the Representatives, and will use
its reasonable best efforts to cause such registration statement to be declared effective within 60
days after the Renewal Deadline. The Company will take all other action necessary or appropriate
to permit the public offering and sale of the Securities to continue as contemplated in the expired
registration statement relating to the Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be.



(n) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time
during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating to the Securities,
in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such
registration statement of post-effective amendment to be declared effective and (iv) promptly
notify the Representatives of such effectiveness. The Company will take all other action necessary
or appropriate to permit the public offering and sale of the Securities to continue as contemplated
in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the
Company has otherwise become ineligible. References herein to the Registration Statement shall
include such new registration statement or post-effective amendment, as the case may be.



(o) Filing Fees. Each of the Company and the Guarantors agrees to pay the required Commission
filing fees relating to the Securities within the time required by and in accordance with Rule
456(b)(1) and 457(r) of the Securities Act.



(p) Compliance with Sarbanes-Oxley Act. The Company will comply with all applicable
securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley
Act, and use its reasonable best efforts to cause the Company’s directors and officers, in



 


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their capacities as such, to comply with such laws, rules and regulations, including, without
limitation, the provisions of the Sarbanes-Oxley Act.



(q) No Manipulation of Price. Neither the Company nor any Guarantor will take, directly or
indirectly, any action designed to cause or result in, or that has constituted or might reasonably
be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation
of the price of any securities of the Company to facilitate the sale or resale of the Securities.



The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.



SECTION 4. Payment of Expenses. Each of the Company and the Guarantors, jointly and
severally, agrees to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the Securities
(including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp
taxes in connection with the issuance and sale of the Securities, (iii) all fees and expenses of
the Company’s and any Guarantor’s counsel, independent public or certified public accountants and
other advisors to the Company and the Guarantors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of
experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and
all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and
the Securities, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the
Company, the Guarantors or the Underwriters in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part of the Securities
for offer and sale under the state securities or blue sky laws, and, if requested by the
Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising
the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the FINRA of the terms of the sale of the Securities, (vii) the fees
and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (viii) any fees payable in connection
with the rating of the Securities with the ratings agencies, (ix) all fees and expenses (including
reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by
the Depositary for “bookentry” transfer, (x) all other fees, costs and expenses referred to in Item
14 of Part II of the Registration Statement, and (xi) all other fees, costs and expenses incurred
in connection with the performance of its obligations hereunder for which provision is not
otherwise made in this Section. Except as provided in this Section 4 and Sections 6, 8 and 9
hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of
their counsel.



SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Securities as provided herein on the Closing Date shall be
subject to the accuracy of the representations and warranties on the part of the



 


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Company and the Guarantors set forth in Section 1 hereof as of each Representation Date as
though then made and to the timely performance by the Company and the Guarantors of their covenants
and other obligations hereunder, and to each of the following additional conditions; subject, in
each case, to the right of the Underwriters to waive any such condition as they believe
appropriate:



(a) Effectiveness of Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall
have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective
amendment providing such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A).



(b) Accountants’ Comfort Letter. On the date hereof, the Representatives shall have received
from KPMG LLP, independent registered public accountants for the Company, a letter dated the date
hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives
with respect to the audited and unaudited financial statements and certain financial information
contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.



(c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received
from KPMG LLP, independent public or certified public accountants for the Company, a letter dated
such date, in form and substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this
Section 5, except that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the Closing Date.



(d) No Objection. If the Registration Statement and/or the offering of the Securities has
been filed with the FINRA for review, the FINRA shall not have raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements.



(e) No Material Adverse Change. (i) None of the Company, the Guarantors or any of their
respective subsidiaries shall have sustained since the date of the latest audited financial
statements included in, or incorporated by reference in, the Disclosure Package any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, and (ii)
since the respective dates as of which information is given in, or in any document incorporated by
reference in, the Disclosure Package and Prospectus (exclusive of any amendment or supplement
thereto on or after the date of this Agreement) there shall not have been any change in the capital
stock or long-term debt of the Company, the Guarantors or any of their respective subsidiaries or
any change, or any development involving a prospective change, in or affecting the general af-



 


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fairs, management, financial position, stockholders’ equity or results of operations of the
Company, the Guarantors and their respective subsidiaries, otherwise than as set forth or
contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering, sale or the
delivery of the Securities on the terms and in the manner contemplated in this Agreement and in the
Disclosure Package and the Prospectus.



(f) No Ratings Agency Change. On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company’s and any Guarantor’s securities by any “nationally
recognized statistical rating organization,” as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, its rating
of any of the Company’s or any Guarantor’s securities.



(g) Opinion of Counsel for the Underwriters. Cahill Gordon & Reindel llp, counsel
for the Underwriters, shall have furnished to the Representatives such opinion or opinions, dated
the Closing Date, as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable them to pass upon
such matters.



(h) Opinion of Counsel for the Company. Cravath, Swaine & Moore LLP, counsel for the Company,
shall have furnished to the Representatives their written opinion, dated the Closing Date, in form
as set forth on Exhibit A-1 hereto.



(i) Opinion of General Counsel for the Company. Robert H. Young, Jr., general counsel for the
Company, shall have furnished to the Representatives his written opinion, dated the Closing Date,
in form as set forth on Exhibit A-2 hereto.



(j) Opinion of Local Counsels for the Company. Allen Matkins Leck Gamble Mallory & Natsis
LLP, local counsel for the Company in California, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form as set forth on Exhibit A-3 hereto, and (2) each
of (A) David Graham & Stubbs LLP, local counsel for the Company in Colorado, (B) Strasburger &
Price LLP, local counsel for the Company in Texas, (C) Lionel Sawyer & Collins LLP, local counsel
for the Company in Nevada, and (D) Parker Poe Adams & Bernstein LLP, local counsel for the Company
in North Carolina, shall have furnished to the Representatives their written opinions, in each case
dated the Closing Date and in form and substance reasonably satisfactory to the Representatives.



(k) Officers’ Certificate. The Company and the Guarantors shall have furnished or caused to
be furnished to the Representatives at the Closing Date certificates of officers of the Company and
the Guarantors reasonably satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company and the Guarantors herein at and as of such Closing
Date, as to the performance by the Company and the Guarantors of all of their respective
obligations hereunder to be performed at or prior to such Closing Date, as to the matters set forth
in subsections (e) and (f) of this Section 5 and as to such other matters as the Representatives
may reasonably request, including, but not limited to, to the effect that:


 


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(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission; and




(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form.



If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.



SECTION 6. Reimbursement of Underwriters’ Expenses. If this Agreement shall be terminated
pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Section 4, 8 or 11 hereof; but, if for any other reason, the Securities are
not delivered by or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as provided in Sections
4, 8 and 11 hereof.



SECTION 7. Effectiveness of This Agreement. This Agreement shall not become effective until
the execution of this Agreement by the parties hereto.




SECTION 8. Indemnification.



(a) Indemnification of the Underwriters. The Company and each of the Guarantors, jointly and
severally, agrees to indemnify and hold harmless each Underwriter, its directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of
the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter or such director, officer, employee, agent or controlling
person may become subject, under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the Company), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any amendment thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing Prospectus, any Company
Additional Written Communication, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and to reimburse each Underwriter and each such director, offi-



 


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cer, employee, agent and controlling person for any and all expenses (including the reasonable
fees and disbursements of counsel chosen by BAS) as such expenses are reasonably incurred by such
Underwriter or such director, officer, employee, agent or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any
loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer
Free Writing Prospectus, any Company Additional Written Communication, the Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in
this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.



(b) Indemnification of the Company, Its Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company and each of the Guarantors,
each of their respective directors, officers and employees and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company or any such director, officer,
employee or controlling person may become subject, under the Securities Act, the Exchange Act, or
other federal or state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, any Company Additional Written Communication, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, any Issuer Free Writing Prospectus, any Company Additional
Written Communication, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished to the Company or
any Guarantor by any Underwriter through the Representatives expressly for use therein; and to
reimburse the Company or any Guarantor or any such director, officer, employee or controlling
person for any legal and other expense reasonably incurred by the Company or any Guarantor or any
such director, officer, employee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. Each
of the Company and the Guarantors hereby acknowledges that the only information furnished to the
Company and the Guarantors by any Underwriter through the Representatives expressly for use in the
Registration Statement, any Issuer Free Writing Prospectus, any Company Additional Written
Communication, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the table in the first paragraph and the statements set
forth in the third paragraph, seventh para-




 


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graph and eighth paragraph under the heading “Underwriting” in the Preliminary Prospectus and the
Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any
liabilities that each Underwriter may otherwise have.




(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not materially prejudiced (through the
forfeiture of substantive rights or defenses) as a proximate result of such failure. In case any
such action is brought against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate
in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party; provided, however, such indemnified party shall
have the right to employ its own counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified
party, unless: (i) the employment of such counsel has been specifically authorized in writing by
the indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and
employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any
such action (including any impleaded parties) include both such indemnified party and the
indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall
have reasonably concluded that either (x) there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying party or such
affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and
the indemnifying party or such affiliate of the indemnifying party (it being understood, however,
that the indemnifying party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which
firm shall be designated in writing by BAS and that all such reasonable fees and expenses shall be
reimbursed as they are incurred). Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation.



(d) Settlements. No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action or claim and (ii)
does not include a statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. The indemnifying party shall not be re-



 


-20-









 






quired to indemnify the indemnified party for any amount paid or payable by the indemnified
party in the settlement of any proceeding effected without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld.



SECTION 9. Contribution. If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company, and the total
underwriting discount and commissions received by the Underwriters, in each case as set forth on
the front cover page of the Prospectus bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the Company and the Guarantors, on
the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the Company and the
Guarantors, on the one hand, or the Underwriters, on the other hand, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.



The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.



The Company, each of the Guarantors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
9.



Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to investors were offered to investors exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent mis-



 


-21-









 






representation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company, each employee of the Company and
each person, if any, who controls the Company with the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Company.



SECTION 10. Default of One or More of the Several Underwriters. If, on the Closing Date, any
one or more of the several Underwriters shall fail or refuse to purchase Securities that it or they
have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Securities to be purchased on such date, the
other Underwriters shall be obligated, severally, in the proportion to the aggregate principal
amounts of such Securities set forth opposite their respective names on Schedule A bears to the
aggregate principal amount of such Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase such Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase
such Securities and the aggregate principal amount of such Securities with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Securities to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for the purchase of such
Securities are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Sections 4, 6, 8, 9 and 17
shall at all times be effective and shall survive such termination. In any such case, either the
Representatives or the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days in order that the required changes, if any, to the Registration
Statement, any Issuer Free Writing Prospectus, any Company Additional Written Communication, the
Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.



As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.



SECTION 11. Termination of This Agreement. Prior to the Closing Date, this Agreement may be
terminated by the Representatives by notice given to the Company if at any time (i) trading or
quotation in any of the Company’s securities shall have been suspended or materially limited by the
Commission or the New York Stock Exchange, or trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited; (ii) a general moratorium on commercial
banking activities shall have been declared by any of federal or New York authorities; (iii) there
shall have occurred any outbreak or escalation of hostilities



 


-22-









 






involving the United States or the declaration by the United States of a national emergency or war or
any other calamity or crisis, if the effect of any such event specified in this clause (iii) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering
or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure
Package and the Prospectus; (iv) there shall have occurred a material adverse change in the
existing financial, political or economic conditions in the United States or elsewhere which, in
the judgment of the Representatives, would materially and adversely affect the financial markets or
the markets for the Securities and other debt securities; or (v) there shall have occurred a
material disruption in commercial banking or securities settlement or clearance services. Any
termination pursuant to this Section 11 shall be without liability of any party to any other party
except as provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17
shall survive such termination and remain in full force and effect.



SECTION 12. No Fiduciary Duty. Each of the Company and the Guarantors acknowledges and agrees
that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company and the Guarantors, on
the one hand, and the several Underwriters, on the other hand, and the Company and each of the
Guarantors is capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction each Underwriter is and
has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the
Company, the Guarantors or their respective affiliates, stockholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company or any Guarantor with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company or any Guarantor on other matters) and no Underwriter
has any obligation to the Company or any Guarantor with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and
their respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company and the Guarantors and that the several Underwriters have no
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company and the Guarantors have
consulted their own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.



This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Guarantors and the several Underwriters with respect to the subject
matter hereof. Each of the Company and the Guarantors hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company or any Guarantor may have against the several
Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.



SECTION 13. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company and the Guarantors, of
their respective officers and of the several Underwriters set forth in or made pur-



 


-23-









 






suant to this Agreement (i) will remain operative and in full force and effect, regardless of
any (A) investigation, or statement as to the results thereof, made by or on behalf of any
Underwriter, the officers or employees of any Underwriter, or any person controlling any
Underwriter, the Company or any Guarantor the officers or employees of the Company or any Guarantor
or any person controlling the Company or any Guarantor, as the case may be, or (B) acceptance of
the Securities and payment for them hereunder and (ii) will survive delivery of and payment for the
Securities sold hereunder and any termination of this Agreement.



SECTION 14. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:




If to the Representatives:


Banc of America Securities LLC

One Bryant Park

NY1-100-18-03

New York, NY 10036

Facsimile: 646-855-5958

Attention: High Grade Transaction Management/Legal



and



Barclays Capital Inc.

745 Seventh Avenue

New York, NY 10019

Facsimile: 646-834-8133

Attention: Syndicate Registration



and



J.P. Morgan Securities Inc.

270 Park Avenue

New York, NY 100017

Facsimile: 212-834-6081

Attention: Investment Grade Syndicate Desk



If to the Company:



Airgas, Inc.

259 North Radnor-Chester Road, Suite 100

Radnor, Pennsylvania 19076

Facsimile: 610-225-3271

Attention: Secretary




Any party hereto may change the address for receipt of communications by giving written notice
to the others.


 


-24-









 





SECTION 15. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term “successors” shall not include any purchaser of the
Securities as such from any of the Underwriters merely by reason of such purchase.



SECTION 16. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.



SECTION 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN THAT STATE.



SECTION 18. General Provisions. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.



Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.


 


-25-









 





If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.



	 	 	 	 	 
	 	Very truly yours,


AIRGAS, INC.

 	 
	 	By:  	/s/  Joseph C. Sullivan
 	 
	 	 	Name:  	Joseph C. Sullivan 	 
	 	 	Title:  	Vice-President & Treasurer 	 
	 




 


-26-









 







	 	 	 	 	 
	 	AIRGAS CARBONIC, INC.

AIRGAS DATA, LLC

AIRGAS-EAST, INC.

AIRGAS-GREAT LAKES, INC.

AIRGAS-INTERMOUNTAIN, INC.

AIRGAS INVESTMENTS, INC.

AIRGAS MERCHANT GASES, LLC

AIRGAS MERCHANT HOLDINGS, INC.

AIRGAS-MID AMERICA, INC.

AIRGAS-MID SOUTH, INC.

AIRGAS-NOR PAC, INC.

AIRGAS-NORTH CENTRAL, INC.

AIRGAS-NORTHERN CALIFORNIA & NEVADA, INC.

AIRGAS-REFRIGERANTS, INC.

AIRGAS RETAIL SERVICES, LLC

AIRGAS SAFETY, INC.

AIRGAS-SOUTH, INC.

AIRGAS-SOUTHWEST, INC.

AIRGAS SPECIALTY GASES, INC.

AIRGAS SPECIALTY PRODUCTS, INC.

AIRGAS-WEST, INC.

MEDICAL GAS MANAGEMENT, INC.

MISSOURI RIVER HOLDINGS, INC.

NATIONAL WELDERS SUPPLY COMPANY, INC.

NITROUS OXIDE CORP.

OILIND SAFETY, INC.

RED-D-ARC, INC.

WORLDWIDE WELDING, LLC

 	 
	 	By:  	/s/  Thomas M. Smyth
 	 
	 	 	Name:  	Thomas M. Smyth 	 
	 	 	Title:  	Vice-President 	 



 


 









 





	 	 	 	 	 




The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.



BANC OF AMERICA SECURITIES LLC

BARCLAYS CAPITAL INC.

J.P. MORGAN SECURITIES INC.



Acting as Representatives of the

several Underwriters named in

the attached Schedule A.




	 	 	 	 	 
	By:  	
Banc of America Securities LLC 	 
	 	 	 
	By:  	             /s/  Laurie Campbell
 	 	 
	 	Name:  	Laurie Campbell 	 	 
	 	Title:  	Managing Director 	 	 
	 	 	 
	By:  	
Barclays Capital Inc. 	 	 
	 	 	 
	By:  	             /s/  Pamela Kendall
 	 	 
	 	Name:  	Pamela Kendall 	 	 
	 	Title:  	Director 	 	 
	 	 	 
	By:  	
J.P. Morgan Securities Inc. 	 
	 	 	 	 
	By:  	             /s/  Maria Sramek
 	 	 
	 	Name:  	Maria Sramek 	 	 
	 	Title:  	Executive Director 	 	 
	 




 


-2-











 




SCHEDULE A




	 	 	 	 	 
	 	 	Aggregate 
Principal
	 	 	Amount of 
Notes to Be 
	Underwriters	 	Purchased
	Banc of America Securities LLC
	 	$	100,000,000.00	 
	Barclays Capital Inc.
	 	 	90,000,000.00	 
	J.P. Morgan Securities Inc.
	 	 	90,000,000.00	 
	BNY Mellon Capital Markets, LLC
	 	 	28,000,000.00	 
	Goldman, Sachs & Co.
	 	 	28,000,000.00	 
	Wells Fargo Securities, LLC
	 	 	28,000,000.00	 
	BB&T Capital Markets, a division of Scott & Stringfellow, LLC
	 	 	8,000,000.00	 
	Calyon Securities (USA) Inc.
	 	 	8,000,000.00	 
	RBS Securities Inc.
	 	 	8,000,000.00	 
	Daiwa Securities America Inc.
	 	 	4,000,000.00	 
	Mizuho Securities USA Inc.
	 	 	4,000,000.00	 
	SunTrust Robinson Humphrey, Inc.
	 	 	4,000,000.00	 
	Total
	 	$	400,000,000.00	 






 


Sch-A-1









 





SCHEDULE B




Guarantors




AIRGAS CARBONIC, INC.

AIRGAS DATA, LLC

AIRGAS-EAST, INC.

AIRGAS-GREAT LAKES, INC.

AIRGAS-INTERMOUNTAIN, INC.

AIRGAS-INVESTMENTS, INC.

AIRGAS MERCHANT GASES, LLC

AIRGAS MERCHANT HOLDINGS, INC.

AIRGAS-MID AMERICA, INC.

AIRGAS-MID SOUTH, INC.

AIRGAS-NOR PAC, INC.

AIRGAS-NORTH CENTRAL, INC.

AIRGAS-NORTHERN CALIFORNIA & NEVADA, INC.

AIRGAS-REFRIGERANTS, INC.

AIRGAS RETAIL SERVICE, LLC

AIRGAS-SAFETY, INC.

AIRGAS-SOUTH, INC.

AIRGAS-SOUTHWEST, INC.

AIRGAS SPECIALTY GASES, INC.

AIRGAS SPECIALTY PRODUCTS, INC.

AIRGAS-WEST, INC.

MEDICAL GAS MANAGEMENT, INC.

MISSOURI RIVER HOLDINGS, INC.

NATIONAL WELDERS SUPPLY COMPANY, INC.

NITROUS OXIDE CORP.

OILAND SAFETY, INC.

RED-D-ARC, INC.

WORLDWIDE WELDING, LLC



 


Sch-B-1









 





ANNEX I




Issuer Free Writing Prospectuses




Final Term Sheet dated September 8, 2009




 


A-I-1









 







ANNEX II




Company Additional Written Communication




Electronic (Netroadshow) road show of the Company relating to the offering of Securities dated
September 8, 2009


 


A-I-1









 





EXHIBIT B




AIRGAS, INC.

4.50% Senior Notes due 2014




Final Term Sheet




September 8, 2009




	 	 	 	 	 
	Issuer:

	 	Airgas, Inc.

	 
	 	 	 	 
	Guarantors:

	 	All domestic subsidiaries that guarantee the
Issuer’s revolving credit facility

	 
	 	 	 	 
	Ratings:*

	 	Baa3 (positive outlook) / BBB (stable outlook)

	 
	 	 	 	 
	Size:

	 	$400,000,000
	 
	 	 	 	 
	Maturity:

	 	September 15, 2014

	 
	 	 	 	 
	Coupon (Interest Rate):

	 	4.50%
	 
	 	 	 	 
	Yield to Maturity:

	 	4.527%
	 
	 	 	 	 
	Spread to Benchmark Treasury:

	 	T + 215 basis points

	 
	 	 	 	 
	Benchmark Treasury:

	 	T 2.375% due August 31, 2014

	 
	 	 	 	 
	Benchmark Treasury Price and Yield:

	 	99-31 3/4 and 2.377%

	 
	 	 	 	 
	Interest Payment Dates:

	 	March 15 and September 15, beginning on March
15, 2010

	 
	 	 	 	 
	Redemption Provision:

	 	Callable at the greater of par or the
make-whole (Treasury Rate plus 40 basis
points)

	 
	 	 	 	 
	Price to Public:

	 	99.880%
	 
	 	 	 	 
	Settlement Date:

	 	September 11, 2009

	 
	 	 	 	 
	CUSIP / ISIN:

	 	009363AG7 / US009363AG79

	 
	 	 	 	 
	Joint Book-Running Managers:

	 	Banc of America Securities LLC

Barclays Capital Inc.

J.P. Morgan Securities Inc.







 


B-1









 





	 	 	 	 	 
	Lead Managers:

	 	BNY Mellon Capital Markets, LLC

Goldman, Sachs & Co.

Wells Fargo Securities, LLC

	 
	 	 	 	 
	Co-Managers:

	 	BB&T Capital Markets, a division of Scott & Stringfellow, LLC

Calyon Securities (USA) Inc.

RBS Securities Inc.

Daiwa Securities America Inc.

Mizuho Securities USA Inc.

SunTrust Robinson Humphrey, Inc.









	 	 	 
	*	 	Note: An explanation of the significance of ratings may be obtained from the rating agencies.
Generally, rating agencies base their ratings on such material and information, and such of their
own investigations, studies and assumptions, as they deem appropriate. The rating of the notes
should be evaluated independently from similar ratings of other securities. A credit rating of a
security is not a recommendation to buy, sell or hold securities and may be subject to review,
revision, suspension, reduction or withdrawal at any time by the assigning rating agency.




The Issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the Issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, Banc of America Securities LLC, Barclays
Capital Inc. or J.P. Morgan Securities Inc. can arrange to send you the prospectus if you request
it by calling or e-mailing Banc of America Securities LLC toll free at 1-800-294-1322 or
dg.prospectus_distribution@bofasecurities.com, calling or e-mailing Barclays Capital Inc. at
1-888-603-5847 or barclaysprospectus@broadridge.com, or calling J.P. Morgan Securities Inc. at the
following collect number: 1-212-834-4533.




 


B-2