==============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
THERMADYNE HOLDINGS CORPORATION
(Name of Issuer)
Common Stock
$0.01 PAR VALUE
(Title of Class of Securities)
--------------
883435109
(CUSIP Number)
Donaldson, Lufkin & Jenrette, Inc.
(Name of Persons Filing Statement)
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Tel. No.: 212 450 4340
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
May 22, 1998
(Date of Event which Requires Filing of
this Statement)
--------------
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this statement because of Rule 13d-1(b)(3) or
(4), check the following: [ ]
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SCHEDULE 13D
CUSIP No. 883435109 Page 2 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
1,643,283
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 3 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II-A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
65,443
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 4 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners - A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
5,182
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 5 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
26,570
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 6 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ EAB Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
7,378
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 7 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Offshore Partners II, C.V.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands Antilles
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
80,808
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 8 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
1,828,664
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 9 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
1,828,664
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 10 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
96,074
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 11 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners- A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
35,679
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 12 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Associates LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 2,608,696
9 SOLE DISPOSITIVE POWER
131,753
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 13 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 2,608,696
9 SOLE DISPOSITIVE POWER
131,753
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 14 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ First ESC, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
3,162
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 15 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ ESC II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
309,881
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 16 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ LBO Plans Management Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 2,608,696
9 SOLE DISPOSITIVE POWER
313,043
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 17 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJMB Funding II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
291,758
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 18 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Investors, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,608,696
WITH
9 SOLE DISPOSITIVE POWER
2,565,218
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 19 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997 Partners
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
43,478
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 20 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
43,478
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 -- See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% -- See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 21 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
2,608,696
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 22 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 2,608,696
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
2,608,696
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 23 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 24 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 25 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 26 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 27 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 28 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 29 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH See Item 5
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 30 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 883435109 Page 31 of 31 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont - Tonnerre, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,608,696 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
80.6% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the common stock, $0.01 par value per share (the "Shares"), of Thermadyne
Holdings Corporation, a Delaware corporation ("Thermadyne"). The principal
executive offices of Thermadyne are located at 101 S. Hanley Rd. Ste. 300, St.
Louis, MO 63105.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"):(1) DLJ Merchant
Banking Partners II, L.P., a Delaware corporation ("Partners II"); (2) DLJ
Merchant Banking Partners II-A, L.P., a Delaware limited partnership
("Partners II-A"); (3) DLJ Millennium Partners, L.P., a Delaware limited
partnership ("Millennium"); (4) DLJ Millennium Partners-A, L.P., a Delaware
limited partnership ("Millennium-A"); (5) DLJ Offshore Partners II, C.V., a
Netherlands Antilles limited partnership ("Offshore II"); (6) DLJ EAB
Partners, L.P., a Delaware limited partnership ("EAB"); (7) DLJ Merchant
Banking II, LLC, a Delaware limited liability company ("MBII LLC"); (8) DLJ
Merchant Banking II, Inc., a Delaware corporation ("MBII INC"); (9) DLJ
Diversified Partners, L.P., a Delaware limited partnership ("Diversified");
(10) DLJ Diversified Partners-A, L.P., a Delaware limited partnership
("Diversified-A"); (11) DLJ Diversified Associates, L.P., a Delaware limited
partnership ("Diversified Associates"); (12) DLJ Diversified Partners, Inc., a
Delaware corporation ("Diversified Partners"); (13) DLJ First ESC L.P., a
Delaware limited partnership ("ESC"); (14) DLJ ESC II L.P., a Delaware limited
partnership ("ESC II"); (15) DLJ LBO Plans Management Corporation, a Delaware
corporation ("LBO"); (16) DLJMB Funding II, Inc., a Delaware corporation
("Funding II"); (17) DLJ Capital Investors, Inc., a Delaware corporation
("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general
partnership ("1997 Partners"); (19) UK Investment Plan 1997, Inc. ("Plan 1997"
and together with the previously listed entities, the "DLJ Entities"); (20)
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (21) The
Equitable Companies Incorporated, a Delaware corporation ("EQ"); (22) AXA, a
societe anonyme organized under the laws of France; (23) Finaxa, a societe
anonyme organized under the laws of France; (24) AXA Assurances I.A.R.D.
Mutuelle, a mutual insurance company organized under the laws of France; (25)
AXA Assurances Vie Mutuelle, a mutual insurance company organized under the
laws of France; (26) AXA Courtage Assurance Mutuelle, a mutual insurance
company organized under the laws of France; (27) Alpha Assurances Vie
Mutuelle, a mutual insurance company organized under the laws of France; and
(28) Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, trustees
(the "AXA Voting Trustees") of a voting trust (the "AXA Voting Trust")
established pursuant to a Voting Trust Agreement by and among AXA and the AXA
Voting Trustees dated as of May 12, 1992, as amended January 22, 1997.
Partners II, Partners II-A, Millennium, Millennium-A, Offshore
II, EAB, Diversified, Diversified-A, Funding II, 1997 Partners, ESC, and ESC
II are collectively referred to as the "DLJ Funds".
Partners II, Partners II-A, Millennium and Millennium-A are
Delaware limited partnerships which make investments for long term
appreciation. MBII LLC is the Associate General Partner of Partners II and
Partners II-A. MBII INC is the Managing General Partner of Partners II and
Partners II-A. MBII LLC and MBII INC make all of the investment decisions on
behalf of Partners II and Partners II-A.
EAB is Delaware limited partnership which makes investments for
long term appreciation. MBII LLC is the Associate General Partner of EAB and
LBO is the Managing General Partner of EAB. MBII LLC and LBO make all of the
investment decisions on behalf of EAB.
Offshore II is a Netherlands Antilles limited partnership which
makes investments for long term appreciation. MBII LLC is the Associate
General Partner of Offshore II. MBII INC is the Advisory General Partner of
Offshore II. MBII LLC and MBII INC make all of the investment decisions on
behalf of Offshore II.
MBII LLC is a Delaware limited liability company and is a
registered investment adviser. As the Associate General Partner of Partners
II, Partners II-A, Millennium, Millennium-A, EAB and Offshore II, MBII LLC, in
conjunction with MBII INC, participates in investment decisions made on behalf
of these entities. MBII INC is the managing member of MBII LLC.
MBII INC is a Delaware corporation and is a registered
investment adviser. As the Managing General Partner of Partners II, Partners
II-A, Millennium and Millennium-A, and the Advisory General Partner Offshore
II, MBII INC is responsible for the day to day management of these entities
and, in conjunction with MBII LLC, participates in investment decisions made
on behalf of these entities. MBII INC is a wholly owned subsidiary of DLJCI.
Diversified and Diversified-A are Delaware limited partnerships
which make investments for long term appreciation. A portion of Diversified
and Diversified-A's capital commitments are dedicated to making side-by-side
investments with Partners II and Partners II-A, respectively. Diversified
Associates is the Associate General Partner of Diversified and Diversified-A
and Diversified Partners is the Managing General Partner of Diversified and
Diversified-A. Diversified Partners is responsible for the day to day
management of Diversified and Diversified-A.
Diversified Associates is a Delaware limited partnership and a
registered investment adviser. As the Associate General Partner of
Diversified and Diversified-A, Diversified Associates, in conjunction with
Diversified Partners and subject to the terms of the Diversified Agreement,
participates in the management of investments of Diversified. Diversified
Partners is the general partner of Diversified Associates.
Diversified Partners is a Delaware corporation and a registered
investment adviser. As the Managing General Partner of Diversified and
Diversified-A, Diversified Partners is responsible for the day to day
management of Diversified and Diversified-A. In conjunction with Diversified
Associates, Diversified Partners participates in the investment decisions made
on behalf of Diversified and Diversified-A. Diversified Partners is a wholly
owned subsidiary of DLJCI.
ESC and ESC II are Delaware limited partnerships and "employee
securities companies" as defined in the Investment Company Act of 1940, as
amended. LBO, as the Managing General Partner of ESC and ESC II, makes all of
the investment decisions on behalf of ESC and ESC II.
LBO is a Delaware corporation and a registered investment
adviser. LBO is a wholly owned subsidiary of DLJCI. As the Managing General
Partner of EAB, ESC and ESC II, LBO is responsible for the day-to-day
management of EAB, ESC and ESC II.
Funding II is a Delaware corporation which makes investments
for long term appreciation generally side-by-side with Partners II. Funding
II is a wholly owned subsidiary of DLJCI.
DLJCI is a Delaware corporation a holding company. DLJCI is a
wholly owned subsidiary of DLJ.
1997 Partners is a Delaware general partnership which makes
investments for long term appreciation generally side-by-side with Partners
II. Plan 1997 and DLJ are each general partners of 1997 Partners.
Plan 1997 is a Delaware corporation. Plan 1997 is a wholly
owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns
all of the capital stock of DLJCI and Plan 1997. DLJ, acting on its own
behalf or through its subsidiaries, is a registered broker/dealer and
registered investment adviser engaged in investment banking, institutional
trading and research, investment management and financial and correspondent
brokerage services.
EQ is a Delaware corporation and is a holding company. As of
March 1, 1998, EQ owns, directly or indirectly, 73.2% of DLJ.
AXA is a societe anonyme organized under the laws of France and
a holding company for an international group of insurance and related
financial services companies. As of March 1, 1998, approximately 59% of the
outstanding common stock of EQ was beneficially owned by AXA. For insurance
regulatory purposes, to insure that certain indirect minority shareholders of
AXA will not be able to exercise control over EQ and certain of its insurance
subsidiaries, the voting shares of EQ capital stock beneficially owned by AXA
and its subsidiaries have been deposited into the AXA Voting Trust. For
additional information regarding the AXA Voting Trust, reference is made to
the Schedule 13D filed by AXA with respect to EQ. As of March 1, 1998, AXA
directly owned 0.15% of DLJ.
Finaxa is a societe anonyme organized under the laws of France
and is a holding company. As of March 1, 1998, Finaxa controlled directly and
indirectly approximately 21.4% of the issued ordinary shares (representing
approximately 30.2% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie
Mutuelle, AXA Courtage Assurance Mutuelle, and Alpha Assurances Vie Mutuelle
(collectively, the "Mutuelles AXA") is a mutual insurance company organized
under the laws of France. Each of the Mutuelles AXA is owned by its policy
holders. As of March 1, 1998, the Mutuelles AXA, as a group, control
approximately 62.0% of the issued shares (representing approximately 74.0% of
the voting power) of Finaxa. Including the ordinary shares owned by Finaxa,
on March 1, 1998, the Mutuelles AXA directly or indirectly controlled 24.7% of
the issued ordinary shares (representing 34.8% of the voting power) of AXA.
Acting as a group, the Mutuelles AXA control AXA and Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre,
the AXA Voting Trustees, exercise all voting rights with respect to the shares
of EQ capital stock beneficially owned by AXA and its subsidiaries that have
been deposited in the AXA Voting Trust. The business address, citizenship and
present principal occupation of each of the AXA Voting Trustees are set forth
on Schedule I attached hereto.
The address of the principal business and office of each of the
DLJ Entities and DLJ is 277 Park Avenue, New York, New York 10172. The
address of the principal business and principal office of Equitable is 1290
Avenue of the Americas, New York, New York 10104.
The address of the principal business and principal office of
AXA and the AXA Voting Trustees is 9 Place Vendome, 75001 Paris, France. The
address of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA
Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de
Chateaudun, 75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue
Louis le Grand, 75002 Paris, France; and of Alpha Assurances Vie Mutuelle is
Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense,
France.
The name, business address, citizenship, present principal
occupation or employment and the name and business address of any corporation
or organization in which each such employment is conducted, of each executive
officer or member, as applicable, of the Board of Directors, Supervisory
Board, or the Conseil d'Administration (French analogue of a Board of
Directors) of EQ, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules
A through O, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting
Persons nor, to the best knowledge of any of the Reporting Persons, any of the
other persons listed on Schedules A through O attached hereto, has been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to United
States federal or state securities laws or finding any violation with respect
to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The general and limited partners of the DLJ Funds contributed
$90,000,012 for 2,608,696 Shares.
Item 4. Purpose of Transaction.
On January 21, 1998, Thermadyne and Mercury Acquisition
Corporation, a Delaware corporation that, as of May 22, 1998, was wholly-owned
by certain of the DLJ Funds ("Mercury"), entered into an Agreement and Plan of
Merger (as amended, the "Merger Agreement," attached to the Schedule 13D filed
on March 12, 1998 and made a part thereof as Exhibit 3). The Merger Agreement
provides, among other things, for the merger of Mercury with and into
Thermadyne (the "Merger"), with Thermadyne as the surviving corporation (the
"Surviving Corporation"). The Merger contemplates that approximately 95.7% of
the issued and outstanding Shares of Thermadyne will be converted into cash
and that approximately 4.3% of such Shares will be retained by existing
stockholders. The tramsactions contemplated by the Merger Agreement were
approved by the stockholders of Thermadyne and were consummated, in each case,
on May 22, 1998 (the "Effective Time").
Item 5. Interest in Securities of the Issuer.
Pursuant to the terms of the Merger Agreement, on May 22, 1998
(the "Closing Date"), Thremadyne filed a Certificate of Merger with the
Secretary of the State of Delaware, and the Merger was effective as of the
filing of such certificate. In connection therewith, immediately prior to the
Effective Time, Mercury entered into a Subscription Agreement (the
"Subscription Agreement") (attached hereto and made a part hereof as Exhibit
5) with the DLJ Funds, dated May 22, 1998, pursuant to which the DLJ Funds
purchased shares of common stock and preferred stock of Mercury on the terms
set forth therein. At the Effective Time, each outstanding share of Mercury
common stock was converted into one Share. Immediately following the Effective
Time, the DLJ Funds' approximate ownership of the outstanding common stock of
the Surviving Corporation was 80.6%.
In addition, Thermadyne, the DLJ Funds and certain members of
Thermadyne management (the "Management Shareholders"), have entered into an
Investors' Agreement dated as of May 22, 1998 (the "Investors' Agreement")
(attached hereto and made part hereof as Exhibit 6).
Pursuant to the Investors' Agreement, the Board of Directors
will comprise 7 members, 5 of whom will be nominated by Partners II, one of
whom will be Randall E. Curran, and one of whom will be James H. Tate. Each
of the parties to the Investors' Agreement has agreed to vote its shares of
Thermadyne in favor of the persons so nominated, provided that the Management
Shareholders will not be required to vote for Partners II's nominees if the
number of Shares held by the DLJ Funds is less than 10% of their Initial
Ownership (defined as the number of Shares held by the DLJ Funds as of the
date of the Investors' Agreement).
The Management Shareholders may sell or otherwise transfer
their shares of Thermadyne only as follows: (i) to a Permitted Transferee;
(ii) pursuant to the Tag-along Rights described below; (iii) pursuant to the
Drag-along Rights described below; (iv) in a public offering; provided that
(a) no Management Shareholder may sell any shares of Thermadyne in the first
public offering of shares of Thermadyne after the date of the Investors'
Agreement (the "FPO"), (b) in each public offering following the FPO, each
Management Shareholder may sell no more than his or her Pro Rata Portion
(defined as the number of shares of Thermadyne the Shareholder in question
holds (either non-Purchased Shares or Purchased Shares, as the case may be)
multiplied by a fraction the numerator of which is the number of Shares to be
sold by the DLJ Funds and their Permitted Transferees in the public offering
in question and the denominator of which is the total number of Shares held in
aggregate by the DLJ Funds and their Permitted Transferees prior to such
public offering) of non-Purchased Shares and (d) notwithstanding any of the
above, each Management Shareholder may sell a number of the Shares purchased
by such Management Shareholder on the Closing Date ("Purchased Shares") equal
to his or her Pro Rata Portion in each public offering, including the FPO (the
limitations in (a), (b), (c) and (d) are referred to collectively as the
"Public Offering Limitations"); (v) 180 days (or such lesser period as is
agreed by the underwriter of the public offering) after any public offering,
pursuant to the exemption from registration provided under Rule 144 under the
Securities Act of 1933 (the "Securities Act"), provided that until the earlier
to occur of (a) the second anniversary of the IPO and (b) the fifth
anniversary of the Closing Date (the "Restriction Termination Date") such
sales cannot reduce the Management Shareholder's ownership to (or occur at a
time when such Shareholder's ownership is otherwise) below the greater of (x)
50% of his or her Initial Ownership and (y) that percentage of his or her
Initial Ownership as equals the percentage of the Aggregate Ownership of the
DLJ Funds as a percentage of their Inital Ownership; and (vi) after the
Restriction Termination Date, pursuant to a sale to a third party for cash,
provided that the amount sold in any 12-month period may not exceed 20% of the
greater of (x) the Management Shareholder's holdings at the beginning of the
12-month period and (y) such Management Shareholder's Aggregate Ownership as
of the date of the Investors'Agreement.
The above transfer restrictions applicable to the Management
Shareholders will terminate upon the earlier to occur of (i) the fifth
anniversary of the Closing Date and (ii) a change of control of Thermadyne.
The Investors' Agreement provides that if the DLJ Funds propose
to sell Shares, the Management Shareholders will have the right to participate
in the sale ("Tag-along Rights"), provided that no such rights shall apply (i)
to sales of less than 10%, in the aggregate, of the outstanding Shares, (ii)
to sales to Permitted Transferees of the DLJ Funds, or (iii) to public
offerings. If Tag-along Rights apply, the DLJ Funds will inform the
Management Shareholders (the "Tag Shareholders") of the terms and conditions
of the proposed sale and offer each Tag Shareholder the opportunity to
participate. If the number of Shares that the DLJ Funds and the Tag
Shareholders propose to sell exceeds the number that can be sold on the terms
and conditions proposed by the buyer, the DLJ Funds and each Tag Shareholder
who has exercised Tag-along Rights will be entitled to sell up to his or her
Tag Along Portion. Tag Along Portion shall mean the number of Shares owned by
such Tag Shareholder (on a fully diluted basis) (and in the case of the DLJ
Funds, owned by the DLJ Funds on a fully diluted basis) multiplied by a
fraction, the numerator of which shall be the number of Shares proposed to be
sold by the DLJ Funds and the denominator of which shall be the total number
of Shares (on a fully diluted basis) held by parties to the Investors'
Agreement. To the extent any Tag Shareholder sells less than such Tag
Shareholder's Tag Along Portion, the DLJ Funds shall be entitled to sell their
own Shares in lieu of such Tag Shareholder. The DLJ Funds and the Tag
Shareholders who have exercised Tag-along Rights may sell their Shares on
substantially the same terms and conditions set forth in the notice (subject
to an increase in the amount of consideration of up to 10%) within 120 days of
the date all Tag-along Rights are waived, exercised or expire.
The Investors' Agreement contemplates that if (i) the DLJ Funds
propose to sell Shares constituting not less than 50% of their Initial
Ownership in a bona fide third party sale, or (ii) the DLJMB Funds propose a
sale in which the Shares to be sold by the DLJMB Funds and their permitted
transferees constitute more than 50% of the outstanding Shares held by all
such Shareholders, the DLJ Funds will be entitled to compel the Management
Shareholders to participate in the sale ("Drag-along Rights") with respect to
the Shares owned by each Management Shareholder which constitute the
Drag-along Portion of the number of Shares that such person owns. Drag-along
Portion shall mean as to any Management Shareholder the number of Shares such
person owns (on a fully diluted basis) multiplied by a fraction the numerator
of which is the number of Shares to be sold by the seller and proposed sellers
and the denominator of which is the total number of Shares owned by the seller
and proposed sellers. Shareholders have the right, under certain
circumstances, to refuse to participate in such a sale; should any Shareholder
refuse, the DLJ Funds may cause such Shareholder to sell its Drag-Along
Portion to the DLJ Funds.
The DLJ Funds have the right to request Thermadyne to register
for sale their Shares, on six occasions, if the aggregate proceeds expected to
be received from such sale exceeds $50,000,000 (in the case of the First
Public Offering) or $10,000,000 in all other cases. Each party to the
Investors' Agreement has the right, subject to certain limitations, to request
Thermadyne to include its Shares in any registration under taken by
Thermadyne. All requests for registration are subject to certain other
customary terms and conditions.
While each of the DLJ Entities may be deemed to beneficially
own the Shares held by the DLJ Funds and the Management Shareholders
(collectively, the "Investors' Shares"), each of the DLJ Entities disclaims
beneficial ownership of those Investors' Shares held by the Management
Shareholders.
As the sole stockholder of DLJCI and UKIP 1997 INC, DLJ may be
deemed, for purposes of Rule 13d-3 under the Act, to beneficially own
indirectly the Investors' Shares that may be deemed to be owned beneficially
by each of DLJCI and UKIP 1997 INC. Because of EQ's ownership of DLJ, EQ may
be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own
indirectly the Investors' Shares that may be deemed to be beneficially owned
indirectly by DLJ. Each of DLJ and EQ disclaims beneficial ownership of the
Investors' Shares.
Because of AXA's ownership interest in EQ, and the AXA Voting
Trustees' power to vote the EQ shares placed in the AXA Voting Trust, each of
AXA and the AXA Voting Trustees may be deemed, for purposes of Rule 13d-3
under the Act, to beneficially own indirectly the Investors' Shares that EQ
may be deemed to beneficially own indirectly. Because of the direct and
indirect ownership interest in AXA of Finaxa and the Mutuelles AXA, each of
Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under
the Act, to beneficially own indirectly the Investors' Shares that AXA may be
deemed to beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and the
AXA Voting Trustees expressly disclaim beneficial ownership of any of the
Investors' Shares.
Subject to market conditions and other factors, the DLJ Funds
or other affiliates of DLJ may acquire or dispose of shares of Thermadyne from
time to time in future open-market, privately negotiated or other
transactions, may enter into agreements with third parties relating to
acquisitions of securities issued or to be issued by the Surviving
Corporation, may enter into agreements with the management of Thernadyne
relating to acquisitions of shares of the Surviving Corporation by members of
management, issuances of options to management or their employment by the
surviving corporation, or may effect other similar agreements or transactions.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
See response to Item 4.
A copy of the Merger Agreement was attached as Exhibit 3 to the
Schedule 13D filed by the Reporting Persons with the Securities and Exchange
Commission on March 12, 1998 and is incorporated herein by reference.
A copy of each of the Subscription Agreement, the Investors'
Agreement, Amendment No. 1 to the Merger Agreement and Amendment No. 1 to the
Voting Agreement with Magten Asset Management Corp. are attached hereto as
Exhibits 5, 6, 7 and 8 are incorporated herein by reference. The summaries of
the terms of the Merger Agreement, the Subscription Agreement and the
Investors' Agreement set forth herein are qualified in their entirety by
reference to Exhibits 3 and 7, 5 and 6, respectively.
Except for the agreements described in the response to Item 4,
to the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of Thermadyne, including, but not limited to, transfer or voting of
any of the securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Joint filing agreement among the Reporting Persons
(Previously filed with the Schedule 13D on March 12, 1998).
Exhibit 2: Powers of Attorney (Previously filed with the
Schedule 13D on March 12, 1998).
Exhibit 3: Agreement and Plan of Merger dated as of January 20,
1998 between Thermadyne Holdings Corporation and Mercury Acquisition
Corporation. (Previously filed with the Schedule 13D on March 12, 1998).
Exhibit 4: Voting Agreements dated January 20, 1998 among
Thermadyne Holdings Corporation, Mercury Acquisition Corporation and Magten
Asset Management Corp. and among Thermadyne Holdings Corporation, Mercury
Acquisition Corporation and Fidelity Capital & Income Fund. (Previously filed
with the Schedule 13D on March 12, 1998).
Exhibit 5: Subscription Agreement dated as of May 22, 1998
among Mercury Acquisition Corporation and the buyers named therein.
Exhibit 6: Investors' Agreement dated as of May 22, 1998 among
Thermadyne Holdings Corporation, the DLJ Funds and certain other persons named
therein.
Exhibit 7: Amendment No. 1 to the Agreement and Plan of Merger
between Thermadyne Holdings Corporation and Mercury Acquisition Corporation.
Exhibit 8: Amendment No. 1 to the Voting Agreement among
Thermadyne Holdings Corporation, Mercury Acquisition Corporation and Magten
Asset Management Corp.
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Merchant Banking Partners II, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
DLJ Merchant Banking Partners II-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
DLJ Millennium Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
DLJ Millennium Partners-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
DLJ EAB Partners, L.P.
By DLJ LBO Plans Management Corporation
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Offshore Partners II, C.V.
By DLJ Merchant Banking II, Inc.,
as Advisory General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Merchant Banking II, LLC
By DLJ Merchant Banking II, Inc.,
as Managing Member
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Merchant Banking II, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
DLJ Diversified Partners-A, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
DLJ Diversified Associates, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Diversified Partners, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ First ESC, L.P.
By DLJ LBO Plans Management Corporation,
as Managing
General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ ESC II L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ LBO Plans Management Corporation
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJMB Funding II, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
DLJ Capital Investors, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
UK Investment Plan 1997 Partners
By UK Investment Plan 1997, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: June 26, 1998
UK Investment Plan 1997, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Claire M. Power
---------------------------------
Name: Claire M. Power
Title: Assistant Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
---------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: June 26, 1998
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting
Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
---------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Schedule A
Executive Officers and Directors
of
Mercury Acquisition Corporation
The names of the Directors and the names and titles of the
Executive Officers of Mercury Acquisition Corporation ("Mercury") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of Mercury at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to Mercury and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Peter T. Grauer President and Treasurer; Managing Director,
DLJ Merchant Banking II, Inc.
* William F. Dawson, Jr. Vice President and Secretary; Senior Vice
President, Donaldson, Lufkin & Jenrette
Securities Corporation
- ----------
* Director
Schedule B
Executive Officers and Directors
of
DLJ Merchant Banking II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of MBII
INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to MBII INC and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Nicole S. Arnaboldi Managing Director
* Thompson Dean Managing Director
Carlos Garcia Managing Director
* Peter T. Grauer Managing Director
* David L. Jaffe Managing Director
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer
* Karl R. Wyss Managing Director
- ----------
* Director
Schedule C
Executive Officers and Directors
of
DLJ Diversified Partners, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of DP
INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to DP INC and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer; Managing Director and Chief
Operating Officer, DLJ Merchant Banking II,
Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ----------
* Director
Schedule D
Executive Officers and Directors
of
DLJMB Funding, II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of
Funding II at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
Funding II and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Charles J. Hendrickson Treasurer; Senior Vice President and
Treasurer, Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
- ----------
* Director
Schedule E
Executive Officers and Directors
of
DLJ LBO Plans Management Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ LBO Plans Management Corporation ("LBO") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of LBO at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to LBO and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Vincent DeGiaimo Vice President; Senior Vice President and
Managing Director, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President and Secretary; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
- ----------
* Director
Schedule F
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJCI at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJCI and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman; Chairman and Chief Executive
Officer, Donaldson, Lufkin & Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Operating Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ----------
* Director
Schedule G
Executive Officers and Directors
of
UK Investment Plan 1997, Inc.
The names of the Directors and the names and titles of the Executive
Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of UKIP
1997 INC at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
UKIP 1997 INC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President, Secretary and Treasurer; Vice
President and Secretary, Donaldson, Lufkin &
Jenrette, Inc.
* Stuart S. Flamberg Director of Taxes; Senior Vice President and
Director of Taxes, Donaldson, Lufkin &
Jenrette, Inc.
* Mark A. Competiello Tax Manager; Senior Vice President and Tax
Manager, Donaldson, Lufkin & Jenrette, Inc.
- ----------
* Director
Schedule H
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of DLJ
at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman
* Joe L. Roby President and Chief Executive Officer
* Henri de Castries (1) Senior Executive Vice President
AXA Financial Services and Life Insurance
23, avenue Matignon Activities (U.S. & U.K.), AXA
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International
AXA Life, AXA
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer,
LH Research LH Research (research)
152 East 38th Street
New York, New York 10016-2605
* Michael Hegarty President and Chief Operating Officer
1290 Avenue of the Americas The Equitable Life Assurance
16th Floor Society of the United States
New York, New York 10104
* Henri G. Hottinguer (2) Chairman and Chief Executive Officer,
Banque Hottinguer Banque Hottinguer (banking)
38, rue de Provence
75009 Paris, France
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Edward D. Miller President and Chief Executive Officer,
1290 Avenue of the Americas The Equitable Companies Incorporated
New York, New York 10104
* W. J. Sanders, III Chairman and Chief Executive Officer,
Advanced Micro Devices, Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief
Financial Officer, The Equitable
Companies Incorporated
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Hamilton E. James Managing Director
* Richard S. Pechter Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President and Chief
Financial Officer
- ----------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
Schedule I
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the Executive
Officers of The Equitable Companies Incorporated ("EQ") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of EQ at
1290 Avenue of the Americas, New York, New York 10104. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
EQ and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear (1) Chairman of the Executive Board, AXA
AXA
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette,
Donaldson, Lufkin & Jenrette, Inc. Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group
AXA Human Resources and Communications, AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Chairman of the Board; Senior Executive
AXA Vice President, Financial Services and
23, avenue Matignon Insurance Activities, U.S. & U.K.), AXA
75008 Paris, France Life
* Joseph L. Dionne Chairman and Chief Executive Officer,
The McGraw-Hill Companies The McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* William T. Esrey Chairman and Chief Executive Officer,
Sprint Corporation Sprint Corporation (telecommunications)
P.O. Box 11315
Kansas City, MO 64112
* Jean-Rene Fourtou (1) Chairman and Chief Executive Officer,
Rhone-Poulenc S.A. Rhone-Poulenc S.A. (manufacturer of
25 quai Paul Doumer chemicals and agricultural products)
92408 Courbevoie Cedex
France
* Jacques Friedmann (1) Chairman of the Supervisory Board,
AXA AXA
9, Place Vendome
75001 Paris
France
Robert E. Garber Executive Vice President and General
Counsel; Executive Vice President and
General Counsel, The Equitable Life
Assurance Society of the United States
Jerome S. Golden Executive Vice President;
Executive Vice President,
The Equitable Life Assurance
Society of the United States
* Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf,
LeBoeuf, Lamb, Greene & Lamb, Greene & MacRae, L.L.P. (law
MacRae, L.L.P. firm)
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive
Fox-Pitt, Kelton Group Limited Officer, Fox-Pitt, Kelton Group
35 Wilson Street Limited (finance)
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive
Harris Corporation Officer, currently Director, Harris
1025 NASA Boulevard Corporation (manufacturer of electronic,
Melbourne, FL 32919 telephone and copying systems)
* John H. F. Haskell, Jr. Director and Managing Director, SBC
Dillon, Read & Co., Inc. Warburg Dillon Read, Inc. (formerly
535 Madison Avenue Dillon, Read & Co., Inc.)
New York, NY 10022 (investment banking firm)
* Michael Hegarty Vice Chairman and Chief Operating
Officer; President and Chief
Operating Officer, The Equitable
Life Assurance Society of the United
States
* Mary R. (Nina) Henderson President, Best Foods Grocery
Best Foods Grocery (food manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Edward D. Miller President and Chief Executive Officer;
Chairman and Chief Executive
Officer, The Equitable Life
Assurance Society of the United
States
Peter D. Noris Executive Vice President and Chief
Investment Officer; Executive Vice
President and Chief Investment
Officer, The Equitable Life
Assurance Society of the United
States
* Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer,
64/70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment)
92646 Boulogne Cedex, France
* George J. Sella, Jr. Retired Chairman, President and Chief
American Cyanamid Company Executive Officer, American Cyanamid
P.O. Box 397 Company (manufacturer of pharmaceutical
Newton, NJ 07860 products and agricultural products)
Jose Suquet Executive Vice President; Senior
Executive Vice President and Chief
Distribution Officer; The Equitable
Life Assurance Society of the United
States
Stanley B. Tulin Executive Vice President and Chief
Financial Officer; Vice Chairman
and Chief Financial Officer, The
Equitable Life Assurance Society of
the United States
* Dave H. Williams Chairman and Chief Executive Officer,
Alliance Capital Alliance Capital Management Corp.
Management Corporation (investment adviser)
1345 Avenue of the Americas
New York, NY 10105
- ----------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
Schedule J
Members of Executive Committee and Supervisory Board
of
AXA
The names and titles (for the Executive Committee members) of the Members
of the Executive Committee and Supervisory Board of AXA and their business
addresses and principal occupations are set forth below. If no address is
given, the Member's business is 23, avenue Matignon, 75008 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA and each individual is a citizen of the Republic of France.
Members of the Executive Committee
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
Donald Brydon (1) Senior Executive Vice President,
Chief Executive, AXA
Investment Manager Europe
Henri de Castries Senior Executive Vice President,
Financial Services and Insurance
Activities (U.S. , U.K. and Benelux)
John Chalsty (2) Senior Executive Vice President;
Chairman, Donaldson, Lufkin &
Jenrette, Inc.
(investment banking)
Francoise Colloc'h Senior Executive Vice President,
Group Human Resources and
Communications
Jean-Pierre Gerard (3) Senior Executive Vice President;
Chief Executive Officer, Royale Belge
(insurance)
Denis Kessler Advisor to Claude Bebear
Claus Kleyboldt (4) Senior Executive Vice President;
Chairman of the Executive Board of
AXA Colonia Konszern AG
(insurance)
Gerard de La Martiniere Senior Executive Vice President,
Chief Financial Officer
Edward D. Miller (2) Senior Executive Vice President;
Chief Executive Officer, The
Equitable Companies Incorporated
Jean-Louis Meunier Senior Executive Vice President,
Central Underwriting Officer
Michel Pinault Senior Executive Vice President,
Group Administration
Claude Tendil Senior Executive Vice President,
French Insurance Activities,
international risks, transborder
insurance projects and information
systems policy
Geoff Tomlinson (5) Senior Executive Vice President;
Managing Director, National Mutual
Holdings (insurance)
Dave H. Williams (2) Senior Executive Vice President;
Chairman and Chief Executive
Officer, Alliance Capital Management
Corporation (investment adviser)
Mark Wood (1) Senior Executive Vice President;
Managing Director, Sun Life &
Provincial Holdings plc
Members of the Supervisory Board
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Jacques Friedmann Chairman of the Supervisory Board
9, Place Vendome
75008 Paris, France
Jean-Louis Beffa Chairman and Chief Executive
"Les Miroirs" Officer,
Cedex 27 Compagnie de St. Gobain (industry)
92096 Paris La Defense, France
Antoine Bernheim General Partner, Lazard Freres et Cie
121, Avenue Haussman (investment banking); Chairman,
75008 Paris, France Assicurazioni Generali S.p.A.
(insurance)
Jacques Calvet Former Chairman of the Executive
75, avenue de la Grande Armee Board, Peugeot S.A. (auto
75116 Paris, France manufacturer)
Henri de Clermont - Tonnerre Chairman of the Supervisory Board,
4 Avenue Van Dyke Qualis SCA (transportation)
75008 Paris, France
David Dautresme General Partner, Lazard Freres et Cie
121, Boulevard Haussman (investment banking)
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie
52, rue d'Anjou Generale des Eaux (industry and
75008 Paris, France services)
Paul Desmarais (7) Chairman and Chief Executive
751, Square Victoria Officer, Power Corporation (industry
Montreal Quebec and services)
H3Y 3JY Canada
Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
93408 Courbevoie Cedex (industry)
France
Michel Francois-Poncet Chairman of the Supervisory Board,
5, Rue d'Antin Compagnie Financiere de Paribas
75002 Paris, France (financial services and banking)
Patrice Garnier Director, Finaxa
Latreaumont
76360 Baretin, France
Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton
35 Wilson Street Group Limited (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Vice Chairman, Financiee Hottinguer
38, rue de Provence (banking)
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lukfin
c/o Donaldson, Lukfin & Jenrette, & Jenrette, Inc. (investment banking)
Inc.
277 Park Avenue
New York, New York 10172
Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office
67200 Strasbourg, France furniture)
Gerard Mestrallet Chairman of the Executive Board
1, rue d'Astorg (finance) Suez Lyonnaise des Eaux
75008 Paris, France
Friedel Neuber Chairman of the Executive Board,
Girozentrade Herzogstrasse 15 WestDeutsche Landesbank (banking)
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim
Konsortium Oppenheim (banking)
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive
16, Boulevard des Italiens Officer, Banque Nationale de Paris
75009 Paris, France (banking)
Didier Pineau-Valencienne Chairman and Chief Executive
64-70, avenue Jean Baptiste Clement Officer, Schneider S.A. (electric
92646 Boulogne Cedex, France equipment)
Bruno Roger General Partner, Lazard Freres &
121, Boulevard Haussman Cie (investment banking)
75008 Paris, France
Simone Rozes First Honorary President, Cour de
2, rue Villaret de Joyeuse Cassation (government)
75017 Paris, France
- ------------
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Belgium
(4) Citizen of Germany
(5) Citizen of Australia
(6) Citizen of Switzerland
(7) Citizen of Canada
Schedule K
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the
Member's or Executive Officer's business address is that of Finaxa at 23,
avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Finaxa and each
individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Executive Board, AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Chairman, Credit Suisse Hottinguer Paris
38, rue de Provence (banking)
75009 Paris, France
* Paul Hottinguer (1) Member of the Supervisory Board, Credit
38, rue de Provence Suisse Hottinguer Paris (banking)
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Andre Levy-Lang Chief Executive Officer, Paribas
3, rue d'Antin (banking)
75002 Paris, France
* Christian Manset Vice Chairman of the Supervisory Board,
3, rue d'Antin Paribas
75002 Paris, France
* Georges Rousseau Retired
Le Hameau de Verguetot
76430 Oudalle, France
* Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking)
Paseo de la Castillone, 8
28046 Madrid, Spain
- ----------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(2) Citizen of Spain
Schedule L
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each
individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Jean-Luc Bertozzi Executive Vice President
ASSE (represented by)
Jean-Pierre Chaffin Manager, Federation de la Metallurgie
5, rue la Bruyere (industry)
75009 Paris, France
* Gerard Coutelle Retired
7, rue Gounot
75007 Paris, France
* Henri de Castries Senior Executive Vice President,
23, avenue Matignon Financial Services and Life Insurance
75008 Paris, France Activities (U.S. & U.K. and Benelux),
AXA
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
82, Avenue de Wagram
75017 Paris, France
Georges Rousseau Retired
* Lehameau de Verguetot
76430 Oudalle, Frances
* Claude Tendil Chief Executive Officer; Senior
Tour Assur 38F Executive Vice President, French
92083 Paris La Defense, France Insurance Activities, AXA
* Francis Vaudour Chief Executive Officer, Segafredo
14, boulevard Industriel Zanetti France S.A. (coffee importing
76301 Sotteville les Rouen, and processing)
France
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board,
4. avenue Van Dyke Qualis SCA (transportation)
75008 Paris, France
- ----------
* Member, Conseil d'Administration
Schedule M
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of
the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive
23, avenue Matignon Board, AXA
75008 Paris, France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President,
23, avenue Matignon Financial Services and Life Insurance
75008 Paris, France Activities (U.S. & U.K.), AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board,
4, avenue Van Dyke Qualis SCA (transportation)
75008 Paris, France
* Patrice Garnier Latreaumont Retired
76360 Baretin, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
* Francois Richer Retired
82, avenue de Wagram
75017 Paris, France
* Georges Rousseau Retired
Le Hameau de Verguetot
76430 Oudalle, France
* Claude Tendil Chief Executive Officer; Senior
Tour Assur 38F Executive Vice President, French
92083 Paris La Defense, France Insurance Activities, AXA
* Francis Vaudour Chief Executive Officer, Segafredo
14, boulevard Industriel Zanetti France S.A. (coffee importing
76301 Sotteville les Rouen, France and processing)
* Francis Cordier Chairman and Chief Executive Officer,
Rue Nicephore Niepcc Group Demay Lesieur (food industry)
BP 232 - 76304 Sotteville Les Rouen,
France
- ---------
* Member, Conseil d'Administration
Schedule N
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Courtage Assurance Mutuelle and each
individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive
23, avenue Matignon Board, AXA
75008 Paris, France
* Francis Cordier Chairman and Chief Executive Officer,
Rue Nicephore Niepce Group Demay Lesieur (food industry)
BP 232 76304 Sotteville Les Rouen,
France
* Gerard Coutelle Retired
7, rue Gounot
75007 Paris, France
* Henri de Castries Senior Executive Vice President,
23, avenue Matignon Financial Services and Life Insurance
75008 Paris, France Activities (U.S. & U.K. and Benelux),
AXA
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
* Francis Magnan Chairman and Chief Executive Officer,
50, boulevard des Dames Compagnie Daher (air and sea
13002 Marseille, France transportation)
* Jean de Ribes Chairman and Chief Executive Officer,
38, rue Fortuny Banque Rivaud (banking)
75008 Paris, France
* Georges Rousseau Retired
Le Hameau de Verguetot
76430 Oudalle, France
* ASSE Manager,
Represented by Jean - Pierre Chappin Federation de la Metallurgie (industry)
11, rue de Rome
75008 Paris, France
* Claude Tendil Chief Executive Officer; Senior
Tour Assur 38F Executive Vice President, French
92083 Paris La Defense, France Insurance Activities, AXA
- ------------
* Member, Conseil d'Administration
Schedule O
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Alpha Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu,
Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Alpha Assurances
Vie Mutuelle and each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Henri Brischoux Corporate Secretary; AXA Assurance France
Tour Assur 38
92083 Paris La Defense, France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Claude Fath Chairman of the Executive Board, UAP Vie
Tour Assur 28F
92083 Paris Las Defense,
France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Georges Rousseau Retired
Le Hameau de Verguetot,
76430 Oudalle, France
* Claude Tendil Chief Executive Officer; Senior Executive
Tour Assur 38F Vice President, French Insurance Activities,
92083 Paris La Defense, AXA
France
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and
76301 Sotteville les Rouen, processing)
France
- ----------
* Member, Conseil d'Administration
EXHIBIT 5
SUBSCRIPTION AGREEMENT
dated as of
May 22, 1998
among
MERCURY ACQUISITION CORPORATION
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
Preferred Stock
and Warrants
of
Mercury Acquisition Corporation
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions.............................................1
ARTICLE 2
Purchase and Sale
Section 2.1. Purchase and Sale.......................................3
Section 2.2. Closing.................................................3
ARTICLE 3
Representations and Warranties of Seller
Section 3.1. Corporate Existence and Power...........................4
Section 3.2. Corporate Authorization.................................4
Section 3.3. Governmental Authorization..............................4
Section 3.4. Noncontravention........................................4
Section 3.5. Capitalization and Voting Rights........................5
Section 3.6. Valid Issuance of Securities............................5
Section 3.7. Litigation..............................................6
Section 3.8. Newly Formed Corporation................................6
Section 3.9. Meaning of Seller.......................................6
ARTICLE 4
Representations and Warranties of Buyers
Section 4.1. Existence and Power.....................................6
Section 4.2. Authorization...........................................7
Section 4.3. Governmental Authorization..............................7
Section 4.4. Purchase for Investment.................................7
Section 4.5. Private Placement.......................................7
Section 4.6. Litigation..............................................8
Section 4.7. Brokers or Finders' Fees................................8
ARTICLE 5
Conditions to Closing
Section 5.1. Conditions to Obligations of Each Buyer and the Seller..9
Section 5.2. Conditions to Obligation of Each Buyer..................9
Section 5.3. Conditions to Obligation of the Seller.................10
ARTICLE 6
Survival; Indemnification
Section 6.1. Survival...............................................10
Section 6.2. Indemnification........................................11
Section 6.3. Exclusivity............................................11
ARTICLE 7
Termination
Section 7.1. Grounds for Termination................................12
Section 7.2. Effect of Termination..................................12
ARTICLE 8
Miscellaneous
Section 8.1. Notices................................................12
Section 8.2. Amendments and Waivers.................................13
Section 8.3. Expenses...............................................14
Section 8.4. Successors and Assigns.................................14
Section 8.5. Governing Law..........................................14
Section 8.6. Jurisdiction...........................................14
Section 8.7. Waiver Of Jury Trial...................................14
Section 8.8. Counterparts; Third Party Beneficiaries................14
Section 8.9. Entire Agreement.......................................15
Section 8.10. Captions...............................................15
Section 8.11. Severability...........................................15
Section 8.12. Interpretation.........................................15
Schedule A Schedule of Investors
Exhibit A Certificate of Incorporation of Mercury Acquisition
Corporation
Exhibit B Preferred Stock
Exhibit C Form of Warrant
Exhibit D Form of Investors' Agreement
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of May 22, 1998 between Mercury Acquisition
Corporation, a Delaware corporation ("Seller") and the Persons named on
Schedule A hereto (each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, the Seller has agreed to merge with and into
Thermadyne Holdings Corporation (the "Company") on the terms and conditions
set forth in the Agreement and Plan of Merger dated as of January 20, 1998
(the "Merger") between the Seller and the Company, as amended (as amnded,
and as the same may be further amended from time to time, the "Merger
Agreement");
WHEREAS, to finance, in part, the payment of the consideration
payable in the Merger, the Seller intends to issue shares of common stock, par
value $0.01 per share (the "Common Stock"), shares of preferred stock (the
"Preferred Stock") and warrants to purchase common stock (the "Warrants" and,
together with the Common Stock and the Preferred Stock, the "Securities");
WHEREAS, all of the outstanding capital stock of the Seller is
currently owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB") and
affiliated funds and entities (collectively, the "DLJMB Entities");
WHEREAS, the Seller desires to issue and sell the relevant
Securities to each of the Buyers, and each of the Buyers desires to purchase
the relevant Securities from the Seller, upon the terms and subject to the
conditions hereinafter set forth;
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
"Closing Date" means the date of the Closing.
"Common Share" means one share of Common Stock.
"Investors' Agreement" means the Investors' Agreement dated as
of the Closing Date among Mercury Acquisition Corporation, DLJ Merchant
Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ
Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified
Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A,
L.P., DLJMB Funding II, Inc., DLJ EAB Partners, L.P., UK Investment Plan 1997
Partners, DLJ First ESC, L.P., and DLJ ESC II, L.P.
"Lien" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance in respect of
such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Transaction Documents" means this Agreement, the Merger
Agreement, the Investors' Agreement and the Warrants.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Accredited Investor 4.06(h)
Certificate of Incorporation 3.05
Closing 2.2
Common Stock Recitals
Company Recitals
Damages 6.2
DLJMB Recitals
Preferred Stock Recitals
Purchase Price 2.1
Securities Recitals
Warrants Recitals
ARTICLE 2
Purchase and Sale
Section 2.1. Purchase and Sale. Upon the terms and subject to
the conditions of this Agreement, the Seller agrees to issue and sell to each
Buyer and each Buyer agrees, severally and not jointly, to purchase from the
Seller the Securities set forth opposite such Buyer's name on Schedule A
hereto at the Closing. The purchase price for the Securities (the "Purchase
Price") is the amount in cash specified on Schedule A hereto. The Purchase
Price shall be paid as provided in Section 2.2.
Section 2.2. Closing. The closing (the "Closing") of the
purchase and sale of the Securities hereunder shall take place at the offices
of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York, as soon as
possible, but in no event later than five business days, after satisfaction of
the conditions set forth in Article 5, or at such other time or place as
Buyers and Seller may agree. At the Closing:
(a) Each Buyer shall deliver to the Seller, in immediately
available funds, Seller's amount of the aggregate Purchase Price set forth
opposite such Buyer's name on Schedule A hereto, by wire transfer (or other
means acceptable to Seller) to an account of the Seller with a bank in New
York City designated by Seller, by notice to such Buyer, not later than two
business days prior to the Closing Date.
(b) The Seller shall deliver to each Buyer certificates, or other
appropriate documentation, for the relevant Securities duly registered in the
name of such Buyer.
ARTICLE 3
Representations and Warranties of Seller
The Seller represents and warrants to each Buyer as of the date
hereof and as of the Closing Date that:
Section 3.1. Corporate Existence and Power. The Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all corporate powers and all
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted and as proposed to be
conducted.
Section 3.2. Corporate Authorization. The execution, delivery
and performance by the Seller of each of the relevant Transaction Documents and
the consummation of the transactions contemplated hereby and thereby
(including the issuance and sale of the Securities) are within the Seller's
corporate powers and have been duly authorized by all necessary corporate
action on the part of the Seller. Each of the relevant Transaction Documents
constitutes or, when executed, will constitute a valid and binding agreement of
the Seller, enforceable against the Seller in accordance with its respective
terms, except (i) as limited by the applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement or creditors' rights generally, or (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
Section 3.3. Governmental Authorization. The execution,
delivery and performance by the Seller of each of the relevant Transaction
Documents and the consummation of the transactions contemplated hereby and
thereby require no order, license, consent, authorization or approval of, or
exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official except such as
have been obtained and the filing of the Certificate of Designation by the
Seller for the Preferred Stock with the office of the Secretary of State for
the State of Delaware.
Section 3.4. Noncontravention. The execution, delivery and
performance by Seller of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby do not and
will not (i) violate the certificate of incorporation or bylaws of Seller, (ii)
violate any applicable law, rule, regulation, judgment, injunction, order or
decree, (iii) require any consent or other action by any Person under,
constitute a default under (with due notice or lapse of time or both), or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of the Seller or to a loss of any benefit to which Seller is
entitled under any provision of any agreement or other instrument binding upon
the Seller or any of the Seller's assets or properties or (iv) result in the
creation or imposition of any material Lien on any property or asset of the
Seller.
Section 3.5. Capitalization and Voting Rights. (a) The
authorized capital stock of the Seller consists of 30,000,000 shares of Common
Stock and 15,000,000 shares of Preferred Stock, and the outstanding capital
stock of the Seller immediately prior to the Closing is 58,000 shares of
Common Stock and no shares of Preferred Stock. The rights, privileges and
preferences of the Common Stock are set forth in the Certificate of
Incorporation attached hereto as Exhibit A (the "Certificate of
Incorporation") and the rights, privileges and preferences of the Preferred
Stock are set forth in the Certificate of Designation attached hereto as
Exhibit B.
(b) Immediately following the Closing the outstanding capital
stock of Seller will be 2,608,696 shares of Common Stock, 2 million shares of
Preferred Stock and Warrants to purchase 353,428 shares of Common Stock. The
Form of Warrant is attached hereto as Exhibit C.
(c) Except as set forth in this Section 3.05 there are, and
immediately after the Closing there will be, no outstanding (i) shares of
capital stock or voting securities of the Seller, (ii) securities of the
Seller convertible into or exchangeable for shares of capital stock or voting
securities of the Seller, (iii) options or other rights to acquire from the
Seller, or other obligation of the Seller to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of the Seller or (iv) other than as expressly permitted in
the Transaction Documents or employment plans, no obligation of the Seller to
repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in (i), (ii),
or (iii).
Section 3.6. Valid Issuance of Securities. Each of the
Securities (other than the Warrants) which are being issued to the Buyers
hereunder, have been duly and validly authorized and when issued, sold and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be fully paid and nonassessable. The Warrants, when executed and
delivered will constitute valid and binding obligations of the Seller,
enforceable in accordance with their terms. The Seller has reserved and will
keep available for issuance upon exercise of the Warrants the total number of
Warrant Shares (as defined in the Warrants) deliverable upon exercise of all
Warrants from time to time outstanding. The issuance of the Warrant Shares
has been duly and validly authorized and, when issued and sold in accordance
with the Warrants, the Warrant Shares will be duly and validly issued, fully
paid and nonassessable and free of preemptive rights.
Section 3.7. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of the
Seller, threatened against or affecting the Seller or any of its respective
properties before any court or arbitrator or any governmental body, agency or
official which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement or which
could reasonably be expected to have a material adverse effect on the
business, financial condition, properties or operations of the Seller, nor is
the Seller aware that there is any basis for the foregoing.
Section 3.8. Newly Formed Corporation. The Seller was
incorporated on January 16, 1998 in the State of Delaware solely for the
purpose of effectuating the transactions contemplated in this Agreement and
the Merger Agreement and has not conducted any business or entered into any
agreements or commitments except with respect to the foregoing.
Section 3.9. Meaning of Seller. Except as otherwise
specifically provided herein, references to the Seller contained in this
Article 3 shall be construed to refer to the Seller on the date hereof and for
purposes of Section 5.02(a)(ii) immediately prior to the consummation of the
transactions contemplated by the Merger Agreement.
ARTICLE 4
Representations and Warranties of Buyers
Each Buyer represents and warrants to the Seller, severally as
to itself only and not jointly or as to any other Buyer, as of the date hereof
and as of the Closing Date that:
Section 4.1. Existence and Power. Such Buyer, if not an
individual, is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all powers (corporate,
partnership or otherwise) and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Such Buyer, if an individual, has the legal
capacity to enter into this Agreement and the Investors' Agreement.
Section 4.2. Authorization. The execution, delivery and
performance by such Buyer of each of this Agreement, and when executed, the
Investors' Agreement and the consummation of the transactions contemplated
hereby and thereby are or, when executed, will be within the powers (corporate,
partnership or otherwise) of such Buyer and have been or will have been duly
authorized by all necessary action on the part of such Buyer. This Agreement
constitutes and the Investors' Agreement, when executed, will constitute a
valid and binding agreement of such Buyer, each enforceable in accordance with
their respective terms, except (i) as limited by the applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies.
Section 4.3. Governmental Authorization. The execution,
delivery and performance by such Buyer of this Agreement and the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby require no order, license, consent, authorization or approval of, or
exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
Section 4.4. Purchase for Investment. Such Buyer is
purchasing the relevant Securities for investment for its own account and not
with a view to, or for sale in connection with, any distribution thereof.
Section 4.5. Private Placement. (a) Such Buyer understands
that (i) the offering and sale of the Securities hereby is intended to be
exempt from registration under the 1933 Act and (ii) there is only a limited
market for the relevant Securities, and there can be no assurance that any
Buyer will be able to sell or dispose of the relevant Securities to be
purchased by such Buyer.
(b) Such Buyer's financial situation is such that such
Buyer can afford to bear the economic risk of holding the relevant Securities
acquired hereunder for an indefinite period of time, and such Buyer can afford
to suffer the complete loss of the investment in the relevant Securities.
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and
risks of the investment in the relevant Securities, or such Buyer has been
advised by a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Securities acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Securities as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no (or only a limited) public market for the Securities and that,
accordingly, it may not be possible for such Buyer to sell the Securities in
case of emergency or otherwise.
(e) Such Buyer and its representatives, including, to the
extent it deems appropriate, its professional, financial, tax and other
advisors, have reviewed all documents provided to them in connection with the
investment in the Securities, and such Buyer understands and is aware of the
risks related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, Seller and its representatives concerning the terms and
conditions of the acquisition of the Securities and related matters and to
obtain all additional information which such Buyer or its representatives deem
necessary.
(g) All information which such Buyer has provided to Seller
and its representatives concerning such Buyer and such Buyer's financial
position is true, complete and correct, and such Buyer agrees to promptly
notify Seller if at any time this ceases to be the case prior to the Closing.
(h) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
Section 4.6. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of such Buyer
threatened against or affecting, such Buyer before any court or arbitrator or
any governmental body, agency or official which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement or the Investors' Agreement.
Section 4.7. Brokers or Finders' Fees. There is no investment
banker, broker, finder or other intermediary which has been retained by, will
be retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from the Company, the Seller or the DLJ
Entities upon consummation of the transactions contemplated by this Agreement.
ARTICLE 5
Conditions to Closing
Section 5.1. Conditions to Obligations of Each Buyer and the
Seller. The obligations of each Buyer and the Seller to consummate the
Closing are subject to the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation
and no judgment, injunction, order or decree by any governmental
entity of competent jurisdiction shall prohibit the consummation of
the Closing or the Merger.
(b) All material actions by or in respect of, or filings
with, any governmental body, agency, official or authority required to
permit the consummation of the Closing shall have been taken, made or
obtained.
(c) The conditions to the consummation of the Merger
Agreement shall have been satisfied or waived and the Merger shall
have been consummated as contemplated by the Merger Agreement, with
any waiver of conditions and any other changes having been consented
to by each of the DLJMB Funds.
(d) The Certificate of Designation for the Preferred Stock
shall have been duly filed at the office of the Secretary of State of
the State of Delaware.
(e) Each other Buyer shall have purchased the Securities to
be purchased by it hereunder by paying the Purchase Price applicable
thereto in accordance with Section 2.02.
(f) Each Buyer and the Seller shall have entered into the
Investors' Agreement on substantially the terms set forth in the term
sheet attached hereto as Exhibit D.
Section 5.2. Conditions to Obligation of Each Buyer. The
obligation of each Buyer to consummate the Closing is subject to the
satisfaction of the following further conditions:
(a) (i) The Seller shall have performed in all material
respects all of its obligations hereunder required to be performed by
it on or prior to the Closing Date and (ii) the representations and
warranties of the Seller contained in this Agreement and in any
certificate or other writing delivered by the Seller pursuant hereto
shall be true in all material respects when made and at and as of the
Closing Date, as if made at and as of such date.
(b) Such Buyer shall have received all documents it may
reasonably request relating to the existence of the Seller and the
authority of the Seller for this Agreement, all in form and substance
reasonably satisfactory to such Buyer.
Section 5.3. Conditions to Obligation of the Seller. The
obligation of the Seller to consummate the Closing with respect to any Buyer
is subject to the satisfaction of the following further conditions:
(a) (i) Such Buyer shall have performed in all material
respects all of its obligations hereunder required to be performed by
it at or prior to the Closing Date and (ii) the representations and
warranties of such Buyer contained in this Agreement and in any
certificate or other writing delivered by such Buyer pursuant hereto
shall be true in all material respects when made and at and as of the
Closing Date, as if made at and as of such date.
(b) The Seller shall have received all documents it may
reasonably request relating to the existence of such Buyer and the
authority of such Buyer for this Agreement, all in form and substance
reasonably satisfactory to the Seller.
ARTICLE 6
Survival; Indemnification
Section 6.1. Survival. The representations and warranties
of the parties hereto contained in this Agreement or in any certificate
delivered pursuant hereto or in connection herewith shall survive the
Closing until twelve months after the Closing Date. Notwithstanding the
preceding sentence, any representation or warranty in respect of which
indemnity may be sought under this Agreement shall survive the time at
which it would otherwise terminate pursuant to the preceding sentence, if
notice of the inaccuracy or breach thereof giving rise to such right of
indemnity shall have been given to the party against whom such indemnity
may be sought prior to such time, but only as to such inaccuracy or breach.
A breach of any representation or warranty made in this Agreement shall not
affect in any manner whatsoever the relative rights and obligations of the
parties to and under the Investors' Agreement.
Section 6.2. Indemnification. (a) The Seller hereby
indemnifies, severally and not jointly, each Buyer and its Affiliates, limited
partners, general partners, directors, officers and employees against and
agrees to hold each of them harmless from any and all damage, loss, liability
and expense (including, without limitation, reasonable expenses of
investigation and reasonable attorneys' fees and expenses in connection with
any action, suit or proceeding) ("Damages") incurred or suffered by any such
party arising out of any misrepresentation or breach of warranty, covenant or
agreement made or to be performed by the Seller pursuant to this Agreement;
provided that with respect to any Buyer, (i) the Seller shall not be liable
under this Section 6.02(a) unless the aggregate amount of Damages with respect
to all matters referred to in this Section 6.02(a) for which such Buyer has
sought indemnification exceeds $100,000 and then only to the extent of such
excess and (ii) Seller's maximum liability under this Section 6.02(a) shall
not exceed the amount of the Purchase Price paid by such Buyer to the Seller.
(b) Each Buyer hereby indemnifies, severally and not jointly, the
Seller and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless from
any and all Damages incurred or suffered by any such party arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by such Buyer pursuant to this Agreement; provided that (i) such
Buyer shall not be liable under this Section 6.02(b) unless the aggregate
amount of Damages with respect to all matters referred to in this Section
6.02(b) exceeds $100,000 and then only to the extent of such excess and (ii)
such Buyer's maximum liability under this Section 6.02(b) shall not exceed the
amount of Purchase Price paid by such Buyer to the Seller.
Section 6.3. Exclusivity. After the Closing, Section 6.2 will
provide the exclusive remedy for any misrepresentation, breach of warranty,
covenant or other agreement or other claim arising out of this Agreement or the
transactions contemplated hereby.
ARTICLE 7
Termination
Section 7.1. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written agreement of the Seller and Buyers;
(b) by the Seller or any Buyer as to the Seller or Buyer if
the Closing shall not have been consummated as of the close of
business on June 30, 1998; or
(c) by the Seller or any Buyer if consummation of the
transactions contemplated hereby would violate any non-appealable
final order, decree or judgment of any court or governmental body
having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 7.01(b)
or (c) shall give notice of such termination to the other party.
Section 7.2. Effect of Termination. If this Agreement is
terminated as permitted by Section 7.01, such termination shall be without
liability of either party (or any stockholder, general partner, limited
partner, director, officer, employee, agent, consultant or representative of
such party) to the other party to this Agreement; provided that if such
termination shall result from the willful (i) failure of either party to
fulfill a condition to the performance of the obligations of the other party,
(ii) failure to perform a covenant of this Agreement or (iii) breach by either
party hereto of any representation or warranty or agreement contained herein,
such party shall be fully liable for any and all Damages incurred or suffered
by the other party as a result of such failure or breach. The provisions of
Sections 8.3, 8.5 and 8.6 shall survive any termination hereof pursuant to
Section 7.1.
ARTICLE 8
Miscellaneous
Section 8.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given, if to any Buyer, to such Buyer at the
address specified by such Buyer on the signature pages of this Agreement or
in a notice given by such Buyer to the Seller for such purpose;
if to the Seller, to:
Mercury Acquisition Corporation
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, New York 10172
Attention: William F. Dawson, Jr.
Fax: (212) 892-7553
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: George R. Bason, Jr.
Fax: (212) 450-4800
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
Section 8.2. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to
this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 8.3. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense, except that if the Closing shall occur, the Company shall
reimburse the DLJ Entities for all costs and expenses incurred by such
entities.
Section 8.4. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
Section 8.5. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York.
Section 8.6. Jurisdiction. The parties hereto agree that any
suit, action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court
for the Southern District of New York or any New York State court sitting in
New York City, and each of the parties hereby consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as provided in Section
8.01 shall be deemed effective service of process on such party.
Section 8.7. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 8.8. Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by the other party
hereto. No provision of this Agreement shall confer upon any Person other
than the parties hereto any rights or remedies hereunder.
Section 8.9. Entire Agreement. This Agreement along with the
Investors' Agreement (including the documents, schedules and exhibits referred
to herein and therein) and the other Exhibits hereto constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter of this
Agreement.
Section 8.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 8.11. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be executed from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
Section 8.12. Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MERCURY ACQUISITION
CORPORATION
By:
------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as
managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJMB FUNDING II, INC., a Delaware
corporation
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ FIRST ESC, L.P.,
By: DLJ LBO Plans Management Corporation,
as manager
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
UK INVESTMENT PLAN 1997
PARTNERS
By: Donaldson, Lufkin & Jenrette, Inc.,
as general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as manager
By:
------------------------------
Name:
Title:
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
SCHEDULE A
<TABLE>
<CAPTION>
No. of No. of
Common Preferred No. of Aggregate
Investor Shares Shares Warrants Purchase Price(*)
-------- ------ --------- -------- -----------------
<S> <C> <C> <C> <C>
DLJ Merchant Banking Partners II, 1,643,283 1,259,850 222,634 $88,189,513.50
L.P.
DLJ Merchant Banking Partners II-A, 65,443 50,173 8,866 3,512,108.50
L.P.
DLJ Offshore Partners II, C.V. 80,808 61,953 10,948 4,336,701.00
DLJ Diversified Partners, L.P. 96,074 73,657 13,016 5,155,978.00
DLJ Diversified Partners-A, L.P. 35,679 27,354 4,834 1,914,775.50
DLJMB Funding II, Inc. 291,758 223,680 39,527 15,657,651.00
DLJ Millennium Partners, L.P. 26,570 20,370 3,600 1,425,915.00
DLJ Millennium Partners-A, L.P. 5,182 3,973 702 278,104.00
DLJ EAB Partners, L.P. 7,378 5,657 1,000 395,966.00
UK Investment Plan 1997 Partners 43,478 33,333 5,890 2,333,316.00
DLJ ESC II, L.P. 309,881 237,576 41,983 16,630,294.50
DLJ First ESC, L.P. 3,162 2,424 428 169,689.00
Total 2,608,696 2,000,000 353,428 $140,000,012.00
</TABLE>
- ----------
(*) Aggregate Purchase Price column includes amounts previously paid on
January 20, 1998.
CERTIFICATE OF INCORPORATION
OF
MERCURY ACQUISITION CORPORATION
* * * * *
FIRST: The name of the Corporation is Mercury Acquisition
Corporation.
SECOND: The address of its registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle,
Delaware 19805. The name of its registered agent at such address is
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended ("Delaware Law").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 45,000,000 consisting of
30,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock") and 15,000,000 shares of Preferred Stock, par value $0.01 per share
(the "Preferred Stock"). The Board of Directors is hereby empowered to
authorize by resolution or resolutions from time to time the issuance of one or
more classes or series of Preferred Stock and to fix the designations, powers,
preferences and relative, participating, optional or other rights, if any, and
the qualifications, limitations or restrictions thereof, if any, with respect
to each such class or series of Preferred Stock and the number of shares
constituting each such class or series, and to increase or decrease the number
of shares of any such class or series to the extent permitted by the Delaware
Law.
FIFTH: The name and mailing address of the incorporator are:
Name Mailing Address
- ------------------------------- -----------------------------
DeAnn C. Fairfield 450 Lexington Avenue
New York, New York 10017
The power of the incorporator as such shall terminate upon the
filing of this Certificate of Incorporation.
SIXTH: The Names and mailing addresses of the persons who are to
serve as directors until the first annual meeting of stockholders or until
their successors are elected and qualified are:
Name Mailing Address
- ------------------------------- -----------------------------
Peter T. Grauer 277 Park Avenue
New York, NY 10172
William F. Dawson, Jr. 277 Park Avenue
New York, NY 10172
SEVENTH: The Board of Directors shall have the power to adopt,
amend or repeal the bylaws of the Corporation.
EIGHTH: Election of directors need not be by written ballot
unless the bylaws of the Corporation so provide.
NINTH: (1) A director of the Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or
was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by Delaware Law. The right to indemnification conferred in this
ARTICLE NINTH shall also include the right to be paid by the Corporation the
expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. The right
to indemnification conferred in this ARTICLE NINTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors,
provide indemnification to such of the officers, employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss incurred by such person in any such capacity or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE NINTH shall
not be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE NINTH, nor
the adoption of any provision of this Certificate of Incorporation or the
bylaws of the Corporation, nor, to the fullest extent permitted by Delaware
Law, any modification of law, shall eliminate or reduce the effect of this
ARTICLE NINTH in respect of any acts or omissions occurring prior to such
amendment, repeal, adoption or modification.
TENTH: The Corporation reserves the right to amend this
Certificate of Incorporation in any manner permitted by Delaware Law and, with
the sole exception of those rights and powers conferred under the above ARTICLE
NINTH, all rights and powers conferred herein on stockholders, directors and
officers, if any, are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto signed my name this 16th
day of January, 1998.
/s/ DeAnn C. Fairfield
--------------------------------
DeAnn C. Fairfield
CROSS-REFERENCE SHEET
Article of Certificate Section of the General Corporation Law of the
of Incorporation State of Delaware ("GCL")
- -------------------------- ---------------------------------------------
First(1) 102(a)(1)
Second(1) 102(a)(2); see also 131
Third(1) 102(a)(3)
Fourth(1) 102(a)(4); see also 151(a)
Fifth(1) 102(a)(5) and 102(a)(6)
Sixth(1) 102(a)(6)
Seventh(1) 109(a)
Eighth(2) 211(e)
Ninth
Section (1) 102(b)(7)
Section (2) 145
Section (3) 145(g)
Section (4) 145(f)
Section (5) See 102(b)(1)
Tenth 241 and 242
- ----------
(1) Denotes matters that are required to be included in the certificate of
incorporation by the GCL.
(2) Denotes articles of the certificate of incorporation which alter the
position that would otherwise prevail under the GCL.
EXHIBIT B
Preferred Stock
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF 13% SENIOR EXCHANGEABLE
PREFERRED STOCK DUE 2010
of
MERCURY ACQUISITION CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, the undersigned, Peter T. Grauer, President and William F.
Dawson, Jr., Secretary, of Mercury Acquisition Corporation, a Delaware
corporation (hereinafter called the "Corporation"), pursuant to the provisions
of Sections 103 and 151 of the General Corporation Law of the State of
Delaware, do hereby make this Certificate of Designations and do hereby state
and certify that pursuant to the authority expressly vested in the Board of
Directors of the Corporation by the Certificate of Incorporation, the Board of
Directors duly adopted the following resolution:
RESOLVED, that, pursuant to Article Fourth of the Certificate of
Incorporation (which authorizes 15,000,000 shares of preferred stock, $0.01
par value ("Preferred Stock"), of which no shares of Preferred Stock are
currently issued and outstanding), the Board of Directors hereby fixes the
powers, designations, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions, of
a series of Preferred Stock.
RESOLVED, that each share of such series of Preferred Stock
shall rank equally in all respects and shall be subject to the following
provisions:
(1) Number and Designation. 2,000,000 shares of the Preferred
Stock of the Corporation shall be designated as 13% Senior Exchangeable
Preferred Stock Due 2010 (the "Senior Preferred Stock").
(2) Rank. The Senior Preferred Stock shall, with respect to
dividend rights and rights on liquidation, dissolution and winding up, rank
prior to all classes of or series of common stock of the Corporation,
including the Corporation's common stock, par value $0.01 per share ("Common
Stock"), and each other class of capital stock of the Corporation, the terms
of which provide that such class shall rank junior to the Senior Preferred
Stock or the terms of which do not specify any rank relative to the Senior
Preferred Stock. All equity securities of the Corporation to which the Senior
Preferred Stock ranks prior (whether with respect to dividends or upon
liquidation, dissolution, winding up or otherwise), including the Common
Stock, are collectively referred to herein as the "Junior Securities." All
equity securities of the Corporation with which the Senior Preferred Stock
ranks on a parity (whether with respect to dividends or upon liquidation,
dissolution or winding up) are collectively referred to herein as the "Parity
Securities." The respective definitions of Junior Securities and Parity
Securities shall also include any rights or options exercisable for or
convertible into any of the Junior Securities and Parity Securities, as the
case may be. The Senior Preferred Stock shall be subject to the creation of
Junior Securities.
(3) Dividends. (a) (i) The holders of shares of Senior
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available for the payment of
dividends, dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate
equal to the greater of (x) 13% per annum (computed on the basis of a 360 day
year) or (y) the stated rate of interest per annum payable on the Senior
Subordinated Notes due 2008 of Thermadyne Inc. plus 300 basis points (the
"Dividend Rate") on the Liquidation Value of each share of Senior Preferred
Stock on and as of the most recent Dividend Payment Date (as defined below).
In the event the Corporation is unable or shall fail to discharge its
obligation to redeem all outstanding shares of Senior Preferred Stock pursuant
to paragraph 5(c) or 5(d) hereof, the Dividend Rate shall increase by .25
percent per quarter (each, a "Default Dividend") for each quarter or portion
thereof following the date on which such redemption was required to be made
until cured, provided that the aggregate increase shall not exceed 5%. Such
dividends shall be payable in the manner set forth below in Sections 3(a)(ii)
and (iii) quarterly on March 31, June 30, September 30, and December 31 of
each year (unless such day is not a business day, in which event on the next
succeeding business day) (each of such dates being a "Dividend Payment Date"
and each such quarterly period being a "Dividend Period"). Such dividends
shall be cumulative from the date of issue, whether or not in any Dividend
Period or Periods there shall be funds of the Corporation legally available
for the payment of such dividends.
(ii) Prior to the fifth anniversary of the issuance of the
Senior Preferred Stock (the "Cash Pay Date"), dividends
shall not be payable in cash to holders of shares of Senior
Preferred Stock but shall, subject to Section 3(b) hereof,
accrete to the Liquidation Value in accordance with Section
4(a) hereof.
(iii) Following the Cash Pay Date, each such dividend shall
be payable in cash on the Liquidation Value per share of the
Senior Preferred Stock, in equal quarterly amounts (to which
the Default Dividend, if any, shall be added), to the
holders of record of shares of the Senior Preferred Stock,
as they appear on the stock records of the Corporation at
the close of business on such record dates, not more than 60
days or less than 10 days preceding the payment dates
thereof, as shall be fixed by the Board of Directors.
Accrued and unpaid dividends for any past Dividend Periods
may be declared and paid at any time, without reference to
any Dividend Payment Date, to holders of record on such
date, not more than 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors.
(b) At the written request of the holders of a majority of the
shares of Senior Preferred Stock, the Corporation shall, commencing on the
first Dividend Payment Date after such request and ending on the Cash Pay Date,
be required to pay all dividends on shares of Senior Preferred Stock by the
issuance of additional shares of Senior Preferred Stock ("Additional Shares").
The Additional Shares shall be identical to all other shares of Senior
Preferred Stock, except as set forth in Section 4. For the purposes of
determining the number of Additional Shares to be issued as dividends pursuant
to this Paragraph (b), such Additional Shares shall be valued at their
Applicable Liquidation Value as provided in Section 4(c).
(c) Holders of shares of Senior Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in
excess of the cumulative dividends, as herein provided, on the Senior
Preferred Stock. Except as provided in this Section 3, no interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Senior Preferred Stock that may be in arrears.
(d) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on Parity Securities, for
any period unless (to the extent such dividends are payable in cash) full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payment on the Senior Preferred Stock for all Dividend Periods terminating on
or prior to the date of payment of the dividend on such class or series of
Parity Securities. When (to the extent such dividends are payable in cash)
dividends are not paid in full or a sum sufficient for such payment is not set
apart, as aforesaid, all dividends declared upon shares of the Senior
Preferred Stock and all dividends declared upon any other class or series of
Parity Securities shall (in each case, to the extent payable in cash) be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Senior Preferred Stock and accumulated and
unpaid on such Parity Securities.
(e) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Junior Securities) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary) (all such dividends, distributions, redemptions or purchases being
hereinafter referred to as a "Junior Securities Distribution") for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation,
directly or indirectly (except by conversion into or exchange for Junior
Securities), unless in each case (i) the full cumulative dividends on all
outstanding shares of the Senior Preferred Stock and any other Parity
Securities shall (to the extent payable in cash) have been paid or set apart
for payment for all past Dividend Periods with respect to the Senior Preferred
Stock and all past dividend periods with respect to such Parity Securities and
(ii) (to the extent payable in cash) sufficient funds shall have been paid or
set apart for the payment of the dividend for the current Dividend Period with
respect to the Senior Preferred Stock and the current dividend period with
respect to such Parity Securities.
(4) Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for the
holders of Junior Securities, the holders of the shares of Senior Preferred
Stock shall be entitled to receive an amount equal to the Liquidation Value of
such share plus any accrued and unpaid cash dividends to the date of
distribution. "Liquidation Value" on any date means, with respect to (x) any
share of Senior Preferred Stock other than any Additional Shares, the sum of
(1) $25.00 per share and (2) the aggregate of all dividends accreted on such
share until the most recent Dividend Payment Date upon which an accretion to
Liquidation Value has occurred (or if such date is a Dividend Payment Date
upon which an accretion to Liquidation Value has occurred, such date),
provided that in the event of an actual liquidation, dissolution or winding up
of the Corporation or the redemption of any shares of Senior Preferred Stock
pursuant to Section 5 hereunder, the amount referred to in (2) shall be
calculated by including dividends accreting to the actual date of such
liquidation, dissolution or winding up or the redemption date, as the case may
be, rather than the Dividend Payment Date referred to above and provided
further that in no event will dividends accrete beyond the earlier of (i) the
Cash Pay Date and (ii) the most recent Dividend Payment Date prior to the
Dividend Payment Date on which dividends on the Senior Preferred Stock are
payable in Additional Shares and (y) any Additional Share, the Applicable
Liquidation Value. All accretions to Liquidation Value will be calculated using
compounding on a quarterly basis. Except as provided in the preceding
sentences, holders of shares of Senior Preferred Stock shall not be entitled to
any distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation. If, upon any liquidation, dissolution or winding up
of the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Senior Preferred Stock shall
be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any Parity Securities, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of Senior
Preferred Stock and any such other Parity Securities ratably in accordance
with the respective amounts that would be payable on such shares of Senior
Preferred Stock and any such other stock if all amounts payable thereon were
paid in full. For the purposes of this paragraph (4), (i) a consolidation or
merger of the Corporation with one or more corporations, or (ii) a sale or
transfer of all or substantially all of the Corporation's assets, shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of any Parity
Securities, after payment shall have been made in full to the holders of the
Senior Preferred Stock, as provided in this paragraph (4), any other series or
class or classes of Junior Securities shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Senior
Preferred Stock shall not be entitled to share therein.
(c) The Applicable Liquidation Value of any Additional Shares
shall be the Liquidation Value of Senior Preferred Stock outstanding
immediately prior to the first Dividend Payment Date occurring after a request
for payment in Additional Shares has been made in accordance with Section 3(b).
(5) Redemption. (a) Redemption Upon Consummation of Public
Offering. The Corporation may, at its option, to the extent it shall have funds
legally available for such payment, redeem, prior to [May 15], 2001, in whole
but not in part, shares of Senior Preferred Stock, at a redemption price per
share equal to 113% of the Liquidation Value, in cash, plus accrued and unpaid
cash dividends on such shares to the date fixed for redemption, without
interest, provided that the Corporation shall not redeem any shares of Senior
Preferred Stock pursuant to this Paragraph 5(a) unless (i) prior to such
redemption a Public Offering shall have been consummated, and (ii) the
aggregate redemption price of the shares of Senior Preferred Stock redeemed
pursuant to this Section 5(a) does not exceed the net proceeds received by the
Corporation in such Initial Public Offering.
"Public Offering" shall mean any underwritten public offering of
Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended, and shall, in addition, for the purposes of
Section 5(a) hereof, include any sale, pursuant to such an underwritten
registered public offering, following the Closing Date of any common stock by
any affiliate of the Corporation, the net proceeds of which are contributed or
loaned to the Corporation in such a manner that such proceeds may lawfully be
used for the redemption of the Senior Preferred Stock.
"Closing Date" shall have the meaning ascribed to such term in
the Investors' Agreement.
"Investors' Agreement" means the Investors' Agreement executed
in May, 1998 among Thermadyne Holdings Corporation, DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore
Partners, C.V., DLJ Merchant Banking Funding, Inc., DLJ Offshore Partners II,
C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ
Millennium Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ
EAB Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ
ESC II, L.P., (collectively, the "DLJMB Funds"), and certain other
stockholders listed on the signature pages thereof.
(b) Redemption At the Option of the Corporation. On and after
[May 15], 2003, to the extent the Corporation shall have funds legally
available for such payment, the Corporation may, at its option, redeem shares
of Senior Preferred Stock, at any time in whole but not in part, at redemption
prices per share in cash set forth in the table below, together with accrued
and unpaid cash dividends thereon to the date fixed for redemption, without
interest:
Year Beginning
[May 15] Percentage of Liquidation Value
--------------
2003 106.500%
2004 104.333
2005 102.167
2006 100.000
(c) Redemption In the Event of a Change of Control. In the
event of a Change of Control, the Corporation shall, to the extent it shall
have funds legally available for such payment, offer to redeem all of the
shares of Senior Preferred Stock then outstanding, and shall redeem the shares
of Senior Preferred Stock of any holder of such shares that shall consent to
such redemption, upon a date no later than 30 days following the Change in
Control, at a redemption price per share equal to 101% of the Liquidation
Value, in cash, plus accrued and unpaid cash dividends thereon to the date
fixed for redemption, without interest.
"Change of Control" means such time as: (a) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), other than any person or group comprised
solely of the Initial Investors, has become the beneficial owner, by way of
merger, consolidation or otherwise, of 30% or more of the voting power of all
classes of voting securities of the Corporation, and such person or group has
become the beneficial owner of a greater percentage of the voting power of all
classes of voting securities of the Corporation than that beneficially owned
by the Initial Investors; or (b) a sale or transfer of all or substantially
all of the assets of the Corporation to any person or group (other than any
group consisting solely of the Initial Investors or their affiliates) has been
consummated; or (c) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors of the
Corporation (together with any new directors whose election was approved by a
vote of a majority of the directors then still in office, who either were
directors at the beginning of such period or whose election or nomination for
the election was previously so approved) cease for any reason to constitute a
majority of the directors of the Corporation, then in office.
"Initial Investors" means the Stockholders (determined as of the
issuance of the Preferred Stock) and their Permitted Transferees, each as
defined in the Investors' Agreement.
(d) Mandatory Redemption. To the extent the Corporation shall
have funds legally available for such payment, on [May 15], 2010, if any
shares of the Senior Preferred Stock shall be outstanding, the Corporation
shall redeem all outstanding shares of the Senior Preferred Stock, at a
redemption price equal to the aggregate Liquidation Value, in cash, together
with any accrued and unpaid cash dividends thereon to the date fixed for
redemption, without interest.
(e) Status of Redeemed Shares. Shares of Senior Preferred Stock
which have been issued and reacquired in any manner, including shares
purchased or redeemed, shall (upon compliance with any applicable provisions
of the laws of the State of Delaware) have the status of authorized and
unissued shares of the class of Preferred Stock undesignated as to series and
may be redesignated and reissued as part of any series of the Preferred Stock;
provided that no such issued and reacquired shares of Senior Preferred Stock
shall be reissued or sold as Senior Preferred Stock.
(f) Failure to Redeem. If the Corporation is unable or shall
fail to discharge its obligation to redeem all outstanding shares of Senior
Preferred Stock pursuant to paragraph (5)(c) or 5(d) (each, a "Mandatory
Redemption Obligation"), such Mandatory Redemption Obligation shall be
discharged as soon as the Corporation is able to discharge such Mandatory
Redemption Obligation. If and so long as any Mandatory Redemption Obligation
with respect to the Senior Preferred Stock shall not be fully discharged, the
Corporation shall not (i) directly or indirectly, redeem, purchase, or
otherwise acquire any Parity Security or discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any Parity
Securities (except in connection with a redemption, sinking fund or other
similar obligation to be satisfied pro rata with the Senior Preferred Stock) or
(ii) in accordance with paragraph 3(e), declare or make any Junior Securities
Distribution, or, directly or indirectly, discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of the Junior
Securities.
(g) Failure to Pay Dividends. Notwithstanding the foregoing
provisions of this paragraph (5), unless full cumulative cash dividends
(whether or not declared) on all outstanding shares of Senior Preferred Stock
shall have been paid or contemporaneously are declared and paid or set apart
for payment for all dividend periods terminating on or prior to the applicable
redemption date, none of the shares of Senior Preferred Stock shall be
redeemed, and no sum shall be set aside for such redemption, unless shares of
Senior Preferred Stock are redeemed pro rata.
(6) Procedure for Redemption. (a) In the event the Corporation
shall redeem shares of Senior Preferred Stock pursuant to Sections 5(a), (b)
or (d), notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed at such
holder's address as the same appears on the stock register of the Corporation;
provided that neither the failure to give such notice nor any defect therein
shall affect the validity of the giving of notice for the redemption of any
share of Senior Preferred Stock to be redeemed except as to the holder to whom
the Corporation has failed to give said notice or except as to the holder whose
notice was defective. Each such notice shall state: (i) the redemption date;
(ii) the number of shares of Senior Preferred Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(c) In the case of any redemption pursuant to Sections 5(a),
(b) or (d) hereof, notice having been mailed as provided in Section 6(b)
hereof, from and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the redemption price of
the shares called for redemption), dividends on the shares of Senior Preferred
Stock so called for redemption shall cease to accrue, and all rights of the
holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon surrender
in accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such share shall
be redeemed by the Corporation at the redemption price aforesaid. In case
fewer than all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(d) In the case of a redemption pursuant to Section 5(c)
hereof, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not more than 10 days following the occurrence of the Change
of Control and not less than 20 days prior to the redemption date, to each
holder of record of the shares to be redeemed at such holder's address as the
same appears on the stock register of the Corporation; provided that neither
the failure to give such notice nor any defect therein shall affect the
validity of the giving of notice for the redemption of any share of Senior
Preferred Stock to be redeemed except as to the holder to whom the Corporation
has failed to give said notice or except as to the holder whose notice was
defective. Each such notice shall state: (i) that a Change of Control has
occurred; (ii) the redemption date; (iii) the redemption price; (iv) that such
holder may elect to cause the Corporation to redeem all or any of the shares
of Senior Preferred Stock held by such holder; (v) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (vi) that dividends on the shares the holder elects to
cause the Corporation to redeem will cease to accrue on such redemption date.
Upon receipt of such notice, the holder shall, within 20 days
of receipt thereof, return such notice to the Corporation indicating the
number of shares of Senior Preferred Stock such holder shall elect to cause
the Corporation to redeem, if any.
(e) In the case of a redemption pursuant to Section 5(c)
hereof, notice having been mailed as provided in Section 6(d) hereof, from and
after the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares called
for redemption), dividends on such shares of Senior Preferred Stock as the
holder elects to cause the Corporation to redeem shall cease to accrue, and
all rights of the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption price) shall cease.
Upon surrender in accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for transfer, if the Board
of Directors of the Corporation shall so require and the notice shall so
state), such share shall be redeemed by the Corporation at the redemption
price aforesaid. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
(7) Exchange. (a) Subject to the provisions of this paragraph
(7) the Corporation may, at its option, at any time and from time to time on
any Dividend Payment Date, exchange, to the extent it is legally permitted to
do so, all, but not less than all, outstanding shares (and fractional shares)
of Senior Preferred Stock, for Exchange Debentures, provided that (i) on or
prior to the date of exchange the Corporation shall have paid to or declared
and set aside for payment to the holders of outstanding shares of Senior
Preferred Stock all accrued and unpaid cash dividends on shares of Senior
Preferred Stock through the exchange date in accordance with the next
succeeding paragraph; (ii) no event of default under the indenture (as defined
in such indenture) governing the Exchange Debentures shall have occurred and be
continuing; and (iii) no shares of Senior Preferred Stock are held on such date
by the DLJMB Funds or any of their Affiliates, or any of their Permitted
Transferees. The principal amount of Exchange Debentures deliverable upon
exchange of a share of Senior Preferred Stock, adjusted as hereinafter
provided, shall be determined in accordance with the Exchange Ratio (as
defined below).
Cash dividends on any shares of Senior Preferred Stock
exchanged for Exchange Debentures which have accrued but have not been paid as
of the date of exchange shall be paid in cash. In no event shall the
Corporation issue Exchange Debentures in denominations other than $1,000 or in
an integral multiple thereof. Cash will be paid in lieu of any such fraction
of an Exchange Debenture which would otherwise have been issued (which shall
be determined with respect to the aggregate principal amount of Exchange
Debentures to be issued to a holder upon any such exchange). Interest will
accrue on the Exchange Debentures from the date of exchange.
Prior to effecting any exchange hereunder, the Corporation shall
appoint a trustee to serve in the capacity contemplated by an indenture between
the Corporation and such trustee, containing customary terms and conditions.
The Exchange Ratio shall be, as of any Dividend Payment Date,
$1.00 (or fraction thereof) of principal amount of Exchange Debenture for each
$1.00 of (i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if
any, per share of Senior Preferred Stock held by a holder on the applicable
exchange date.
"Affiliates" shall have the meaning ascribed such term in the
Investors' Agreement.
"Exchange Debentures" means 13% Subordinated Exchange
Debentures due 2010 of the Corporation, to be issued pursuant to an indenture
between the Corporation and a trustee, containing customary terms and
conditions, in accordance with the Term Sheet attached as Annex A hereto.
"Permitted Transferees" shall have the meaning ascribed to such
term in the Investors' Agreement.
(b) Procedure for Exchange. (i) In the event the Corporation
shall exchange shares of Senior Preferred Stock, notice of such exchange shall
be given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the exchange date, to each holder of record of the
shares to be exchanged at such holder's address as the same appears on the
stock register of the Corporation; provided that neither the failure to give
such notice nor any defect therein shall affect the validity of the giving of
notice for the exchange of any share of Senior Preferred Stock to be exchanged
except as to the holder to whom the Corporation has failed to give said notice
or except as to the holder whose notice was defective. Each such notice shall
state: (A) the exchange date; (B) the number of shares of Senior Preferred
Stock to be exchanged and, if fewer than all the shares held by such holder
are to be exchanged, the number of shares to be exchanged from such holder;
(C) the Exchange Ratio; (D) the place or places where certificates for such
shares are to be exchanged for notes evidencing the Exchange Debentures to be
received by the exchanging holder; and (E) that dividends on the shares to be
exchanged will cease to accrue on such exchange date.
(ii) Prior to giving notice of intention to exchange, the
Corporation shall execute and deliver with a bank or trust
company selected by the Corporation an indenture containing
customary terms and conditions. The Corporation will cause
the Exchange Debentures to be authenticated on the Dividend
Payment Date on which the exchange is effective, and will pay
interest on the Exchange Debentures at the rate and on the
dates specified in such indenture from the exchange date.
The Corporation will not give notice of its intention
to exchange under paragraph 6(b)(i) hereof unless it shall
file at the place or places (including a place in the
Borough of Manhattan, The City of New York) maintained for
such purpose an opinion of counsel (who may be an employee
of the Corporation) to the effect that (i) the indenture has
been duly authorized, executed and delivered by the
Corporation, has been duly qualified under the Trust
Indenture Act of 1939 (or that such qualification is not
necessary) and constitutes a valid and binding instrument
enforceable against the Corporation in accordance with its
terms (subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles, and subject to such other qualifications
as are then customarily contained in opinions of counsel
experienced in such matters), (ii) the Exchange Debentures
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
indenture and delivered in exchange for the shares of
Preferred Stock, will constitute valid and binding
obligations of the Corporation entitled to the benefits of
the indenture (subject as aforesaid), (iii) neither the
execution nor delivery of the indenture or the Exchange
Debentures nor compliance with the terms, conditions or
provisions of such instruments will result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust or agreement or instrument, known to such counsel, to
which the Corporation or any of its subsidiaries is a party
or by which it or any of them is bound, or any decree,
judgment, order, rule or regulation, known to such counsel,
of any court or governmental agency or body having
jurisdiction over the Corporation and such subsidiaries or
any of their properties, (iv) the Exchange Debentures have
been duly registered for such exchange with the Securities
and Exchange Commission under a registration statement that
has become effective under the Securities Act of 1933 (the
"Act") or that the exchange of the Exchange Debentures for
the shares of Senior Preferred Stock is exempt from
registration under the Act, and (v) the Corporation has
sufficient legally available funds for such exchange such
that such exchange is permitted under applicable law.
(iii) Notice having been mailed as aforesaid, from and
after the exchange date (unless default shall be made by the
Corporation in issuing Exchange Debentures in exchange for
the shares called for exchange), dividends on the shares of
Senior Preferred Stock so called for exchange shall cease to
accrue, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive
from the Corporation the Exchange Debentures and any rights
such holder, upon the exchange, may have as a holder of the
Exchange Debenture) shall cease. Upon surrender in
accordance with said notice of the certificates for any
shares so exchanged (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall
so require and the notice shall so state), such share shall
be exchanged by the Corporation for the Exchange Debentures
at the Exchange Ratio. In case fewer than all the shares
represented by any such certificate are exchanged, a new
certificate shall be issued representing the unexchanged
shares without cost to the holder thereof.
(iv) Each exchange shall be deemed to have been effected
immediately after the close of business on the relevant
Dividend Payment Date, and the person in whose name or names
any Exchange Debentures shall be issuable upon such exchange
shall be deemed to have become the holder of record of the
Exchange Debentures represented thereby at such time on such
Dividend Payment Date.
(v) Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon exchange of
the Senior Preferred Stock, the Corporation shall comply
with all applicable federal and state laws and regulations
which require action to be taken by the Corporation.
(c) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
notes evidencing Exchange Debentures on exchange of the Senior Preferred Stock
pursuant hereto; provided that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of Exchange Debentures in a name other than that of the holder of the
Senior Preferred Stock to be exchanged and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(8) Voting Rights. (a) The holders of record of shares of
Senior Preferred Stock shall not be entitled to any voting rights except as
hereinafter provided in this paragraph (8), as otherwise provided by law or as
provided in the Investors' Agreement.
(b) If and whenever (i) four consecutive or six quarterly
cash dividends payable on the Senior Preferred Stock have not been paid in
full, (ii) for any reason (including the reason that funds are not legally
available for a redemption), the Corporation shall have failed to discharge
any Mandatory Redemption Obligation (including a redemption in the Event of a
Change of Control pursuant to Section 5(c) hereof), (iii) the Corporation
shall have failed to provide the notice required by Section 6(d) hereof within
the time period specified in such section or (iv) the Corporation shall have
failed to comply with Sections 3(d), 3(e) or 8(c) hereof, (1) the number of
directors then constituting the Board of Directors shall be increased by two
and the holders of a majority of the outstanding shares of Senior Preferred
Stock, together with the holders of shares of every other series of preferred
stock upon which like rights have been conferred and are exercisable
(resulting form either the failure to pay dividends or the failure to redeem)
(any such series is referred to as the "Preferred Shares"), voting as a single
class regardless of series, shall be entitled to elect the two additional
directors to serve on the Board of Directors at any annual meeting of
stockholders or special meeting held in place thereof, or at a special meeting
of the holders of the Senior Preferred Stock and the Preferred Shares called
as hereinafter provided. Whenever (i) all arrears in cash dividends on the
Senior Preferred Stock and the Preferred Shares then outstanding shall have
been paid and cash dividends thereon for the current quarterly dividend period
shall have been paid or declared and set apart for payment, (ii) the
Corporation shall have fulfilled its Mandatory Redemption Obligation, (iii)
fulfilled its obligation to provide notice as specified in subsection (b)(iii)
hereof, or (iv) the Corporation shall have complied with Sections 3(d), 3(e),
or 8(c) hereof, as the case may be, then the right of the holders of the
Senior Preferred Stock to elect such additional two directors shall cease (but
subject always to the same provisions for the vesting of such voting rights in
the case of any similar future (i) arrearage in six consecutive quarterly cash
dividends, (ii) failure to fulfill any Mandatory Redemption Obligation, (iii)
failure to fulfill the obligation to provide the notice required by Section
6(d) hereof within the time period specified in such section or (iv) failure
to comply with Sections 3(d), 3(e), or 8(c)) and the terms of office of all
persons elected as directors by the holders of the Senior Preferred Stock
shall forthwith terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of shares of Senior Preferred Stock and the Preferred
Shares, the secretary of the Corporation may, and upon the written request of
any holder of Senior Preferred Stock (addressed to the secretary at the
principal office of the Corporation) shall, call a special meeting of the
holders of the Senior Preferred Stock and of the Preferred Shares for the
election of the two directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the stockholders or as required by law.
If any such special meeting required to be called as above provided shall not
be called by the secretary within 20 days after receipt of any such request,
then any holder of shares of Senior Preferred Stock may call such meeting,
upon the notice above provided, and for that purpose shall have access to the
stock books of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the stockholders or
special meeting held in lieu thereof if such office shall not have previously
terminated as above provided. If any vacancy shall occur among the directors
elected by the holders of the Senior Preferred Stock and the Preferred Shares,
a successor shall be elected by the Board of Directors, upon the nomination of
the then-remaining director elected by the holders of the Senior Preferred
Stock and the Preferred Shares or the successor of such remaining director, to
serve until the next annual meeting of the stockholders or special meeting held
in place thereof if such office shall not have previously terminated as
provided above.
(c) Without the written consent of a majority of the
outstanding shares of Senior Preferred Stock or the vote of holders of a
majority of the outstanding shares of Senior Preferred Stock at a meeting of
the holders of Senior Preferred Stock called for such purpose, the Corporation
will not (i) amend, alter or repeal any provision of the Certificate of
Incorporation (by merger or otherwise) so as to adversely affect the
preferences, rights or powers of the Senior Preferred Stock; provided that any
such amendment that decreases the dividend payable on or the Liquidation Value
of the Senior Preferred Stock shall require the affirmative vote of holders of
each share of Senior Preferred Stock at a meeting of holders of Senior
Preferred Stock called for such purpose or written consent of the holder of
each share of Senior Preferred Stock; or (ii) create, authorize or issue any
class of stock ranking prior to, or on a parity with, the Senior Preferred
Stock with respect to dividends or upon liquidation, dissolution, winding up
or otherwise, or increase the authorized number of shares of any such class or
series, or reclassify any authorized stock of the Corporation into any such
prior or parity shares or create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase any such prior
or parity shares, except that the Corporation may, without such approval,
create authorize and issue Parity Securities for the purpose of utilizing the
proceeds from the issuance of such Parity Securities for the redemption or
repurchase of all outstanding shares of Senior Preferred Stock in accordance
with the terms hereof or of the Investors' Agreement..
(d) In exercising the voting rights set forth in this paragraph
(8), each share of Senior Preferred Stock shall have one vote per share,
except that when any other series of preferred stock shall have the right to
vote with the Senior Preferred Stock as a single class on any matter, then the
Senior Preferred Stock and such other series shall have with respect to such
matters one vote per $25 of Liquidation Value or other liquidation preference.
Except as otherwise required by applicable law or as set forth herein, the
shares of Senior Preferred Stock shall not have any relative, participating,
optional or other special voting rights and powers and the consent of the
holders thereof shall not be required for the taking of any corporate action.
(9) Reports. So long as any of the Senior Preferred Stock is
outstanding, the Corporation will furnish the holders thereof with the
quarterly and annual financial reports that the Corporation is required to
file with the Securities and Exchange Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 or, in the event the
Corporation is not required to file such reports, reports containing the same
information as would be required in such reports.
(10) General Provisions. (a)The term "Person" as used herein
means any corporation, limited liability company, partnership, trust,
organization, association, other entity or individual.
(b) The term "outstanding", when used with reference to shares
of stock, shall mean issued shares, excluding shares held by the Corporation
or a subsidiary.
(c) The headings of the paragraphs, subparagraphs, clauses and
subclauses used herein are for convenience of reference only and shall not
define, limit or affect any of the provisions hereof.
(d) Each holder of Senior Preferred Stock, by acceptance
thereof, acknowledges and agrees that payments of dividends, interest, premium
and principal on, and exchange, redemption and repurchase of, such securities
by the Corporation are subject to restrictions on the Corporation contained in
certain credit and financing agreements.
IN WITNESS WHEREOF, Mercury Acquisition Corporation has caused
this Certificate of Designations to be signed and attested by the undersigned
this __th day of _____, 1998.
Mercury Acquisition Corporation
By
-------------------------------
Name: Peter T. Grauer
Title: President
ATTEST:
- -----------------------------------
Name: William F. Dawson, Jr.
Title: Secretary
ANNEX A
-------
SUMMARY OF TERMS
OF INDENTURE FOR
13% SUBORDINATED EXCHANGE DEBENTURES
Parties: Mercury Acquisition Corporation (the
"Corporation") and [ ], as trustee.
Issue: 13% Exchange Debentures (the "Exchange
Debentures") to be issued by the Corporation,
at its option, in exchange for any or all the
outstanding shares of 13% Senior Exchangeable
Preferred Stock due 2010 (the "Senior
Preferred Stock") issued on or about May 15,
1998 to DLJ Merchant Banking Partners II,
L.P. and certain of its affiliates (the "DLJ
Entities").
Maturity: May 15, 2010.
Interest: 13% annual rate, payable semi-annually.
Through the tenth semi-annual interest payment
period, quarterly interest will accrete on a
compound basis (i.e. non-cash pay) and
increase the face amount of the Exchange
Debentures, thereafter interest will be payable
in cash.
Ranking: The Exchange Debentures will rank senior to
all other subordinated debt, preferred stock and
common equity of the Corporation.
Optional Redemption: The Exchange Debentures will be redeemable
at any time after May 15, 2003 at the option of
the Corporation, in whole or in part, at the
same redemption prices set forth in the
desigination of the Senior Preferred Stock set
forth in Article 4 of the Restated Certificate of
Incorporation of the Surviving Corporation.
Change of Control In the event of a Change of Control of the
Repurchase Right: Corporation each holder of the Exchange
Debentures will have the right to require the
Corporation to repurchase all or any part of
such holder's Exchange Debentures at a
purchase price of 101% of the sum of the
accreted value thereof plus accrued and unpaid
cash interest, if any, to the repurchase date.
Covenants: The Debentures will contain covenants that are
substantially the same as the covenants
contained in the Indenture of the Senior
Discount Debentures due 2008 of the
Corporation and will limit, among other things,
the ability of the Corporation and its
subsidiaries (i) to incur additional indebtedness,
(ii) to pay dividends and make other
distributions on its capital stock, (iii) to
repurchase its capital stock or warrants, options
or other rights to acquire shares of its capital
stock or any Indebtedness subordinated to the
Exchange Debentures, (iv) to make certain
other Restricted Payments, (v) to make certain
investments or asset sales, (vi) to engage in
transactions with affiliates, (vii) to create liens,
(viii) to permit "layering" of indebtedness and
(ix) to merge or consolidate or transfer all or
substantially all of its assets.
EXHIBIT C
Form of Warrant
MERCURY ACQUISITION CORPORATION
Class A Warrant for the Purchase of Shares of
Common Stock of Mercury Acquisition Corporation
-----------------------------------------------
No. ____ Warrant to Purchase
____ Shares
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS
ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, VOTING AND
OTHER MATTERS AS SET FORTH IN THE INVESTORS' AGREEMENT (AS HEREIN
DEFINED), COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE
COMPANY OR ANY SUCCESSOR THERETO.
FOR VALUE RECEIVED, MERCURY ACQUISITION CORPORATION, a Delaware
corporation (the "Company"), hereby certifies that [HOLDER], its successor or
permitted assigns (the "Holder"), is entitled, subject to the provisions of
this Warrant, to purchase from the Company, at the times specified herein,
_____ fully paid and non-assessable shares of common stock of the Company, par
value $ 0.01 per share (the "Warrant Shares"), at a purchase price per share
equal to the Exercise Price (as hereinafter defined). The number of Warrant
Shares to be received upon the exercise of this Warrant and the price to be
paid for a Warrant Share are subject to adjustment from time to time as
hereinafter set forth.
(a) DEFINITIONS.
(1) The following terms, as used herein, have the following
meanings:
"Affiliate" shall have the meaning given to such term in Rule
12b-2 promulgated under the Securities and Exchange Act of 1934, as amended.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in the City of New York are authorized by law to
close.
"Common Stock" means the Common Stock, par value $0.01 per
share, of the Company or other capital stock of the Company that is not
preferred as to liquidation or dividends.
"Duly Endorsed" means duly endorsed in blank by the Person or
Persons in whose name a stock certificate is registered or accompanied by a
duly executed stock assignment separate from the certificate with the
signature(s) thereon guaranteed by a commercial bank or trust company or a
member of a national securities exchange or of the National Association of
Securities Dealers, Inc.
"Exercise Price" means $0.01 per Warrant Share, such Exercise
Price to be adjusted from time to time as provided herein.
"Expiration Date" means May 15, 2010 at 5:00 p.m. New York City
time.
"Fair Market Value" means, with respect to one share of Common
Stock on any date, the Current Market Price Per Common Share for purposes of
paragraph (h)(6) hereof.
"Investors Agreement" means the Investors Agreement dated as of
the date hereof among Thermadyne Holdings Corporation, DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore
Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A,
L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ
Funding II, Inc., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P.,
DLJ ESC II, L.P., DLJ First ESC, L.P., and the stockholders listed on the
signature pages thereto.
"Person" means an individual, partnership, corporation, limited
liability company, trust, joint stock company, association, joint venture, or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Principal Holders" means, on any date, the Holders of at least
25% of the Warrants.
"transfer" shall have the meaning assigned to such term in the
Investors' Agreement.
"Warrants" means the Warrants issued to the subscribers under
the Subscription Agreement dated as of the date hereof among the Company and
the subscribers listed on the signature pages thereof.
(2) Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Investors' Agreement.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant in
whole or in part at any time, or from time to time, until the
Expiration Date or, if such day is not a Business Day, then
on the next succeeding day that shall be a Business Day. To
exercise this Warrant, the Holder shall execute and deliver
to the Company a Warrant Exercise Notice substantially in the
form annexed hereto. No earlier than ten days after delivery
of the Warrant Exercise Notice, the Holder shall deliver to
the Company this Warrant Certificate, including the Warrant
Exercise Subscription Form forming a part hereof duly
executed by the Holder, together with payment of the
applicable Exercise Price, provided however, that in
connection with a public offering of the Common Stock, a
Holder may deliver the Warrant Exercise Notice, the Warrant
Exercise Subscription Form and this Warrant Certificate to
the Company simultaneously. Upon such delivery and payment,
the Holder shall be deemed to be the holder of record of the
Warrant Shares subject to such exercise, notwithstanding
that the stock transfer books of the Company shall then be
closed or that certificates representing such Warrant Shares
shall not then be actually delivered to the Holder.
Notwithstanding anything herein to the contrary, in lieu of
payment in cash of the applicable Exercise Price, the Holder
may elect (i) to receive upon exercise of this Warrant, the
number of Warrant Shares reduced by a number of shares of
Common Stock having the aggregate Fair Market Value equal to
the aggregate Exercise Price for the Warrant Shares, (ii) to
deliver as payment, in whole or in part of the aggregate
Exercise Price, shares of Common Stock having the aggregate
Fair Market Value equal to the applicable non-cash portion
of the aggregate Exercise Price for the Warrant Shares or
(iii) to deliver as payment, in whole or in part of the
aggregate Exercise Price, such number of Warrants which, if
exercised, would result in a number of shares of Common
Stock having an aggregate Fair Market Value equal to the
applicable non-cash portion of the aggregate Exercise Price
for the Warrant Shares. Notwithstanding anything to the
contrary in this paragraph (b)(1), if the aggregate Fair
Market Value of the Common Stock applied or delivered
pursuant to (i), (ii) or (iii) above exceeds the aggregate
Exercise Price, in no event shall the Holder be entitled to
receive any amounts from the Company.
(2) The Exercise Price may be paid in cash or by
certified or official bank check or bank cashier's check
payable to the order of the Company or by any combination of
such cash or check. The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of the Warrant
Shares.
(3) If the Holder exercises this Warrant in part, this
Warrant Certificate shall be surrendered by the Holder to the
Company and a new Warrant Certificate of the same tenor and
for the unexercised number of Warrant Shares shall be
executed by the Company. The Company shall register the new
Warrant Certificate in the name of the Holder or in such
name or names of its transferee pursuant to paragraph (f)
hereof as may be directed in writing by the Holder and
deliver the new Warrant Certificate to the Person or Persons
entitled to receive the same.
(4) Upon surrender of this Warrant Certificate in
conformity with the foregoing provisions, the Company shall
transfer to the Holder of this Warrant Certificate
appropriate evidence of ownership of the shares of Common
Stock or other securities or property (including any money)
to which the Holder is entitled, registered or otherwise
placed in, or payable to the order of, the name or names of
the Holder or such transferee as may be directed in writing
by the Holder, and shall deliver such evidence of ownership
and any other securities or property (including any money)
to the Person or Persons entitled to receive the same,
together with an amount in cash in lieu of any fraction of a
share as provided in paragraph (e) below.
(c) RESTRICTIVE LEGEND. Certificates representing shares of
Common Stock issued pursuant to this Warrant shall bear a legend substantially
in the form of the legend set forth on the first page of this Warrant
Certificate to the extent that and for so long as such legend is required
pursuant to the Investors' Agreement.
(d) RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Warrant such number of its authorized but unissued shares of Common Stock
or other securities of the Company from time to time issuable upon exercise of
this Warrant as will be sufficient to permit the exercise in full of this
Warrant. All such shares shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except to the
extent set forth in the Investors' Agreement.
(e) FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant and in lieu of delivery of any such fractional share upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the Current Market Price Per Common Share (as defined in
paragraph (h)(6)) at the date of such exercise.
The Company further agrees that it will not change the par
value of the Common Stock from par value $0.01 per share to any higher par
value which exceeds the Exercise Price then in effect, and will reduce the par
value of the Common Stock upon any event described in paragraph (h) that (i)
provides for an increase in the number of shares of Common Stock subject to
purchase upon exercise of this Warrant, in inverse proportion to and effective
at the same time as such number of shares is increased, but only to the extent
that such increase in the number of shares, together with all other such
increases after the date hereof, causes the aggregate Exercise Price of all
Warrants (without giving effect to any exercise thereof) to be greater than
$3,534.28 or (ii) would, but for this provision, reduce the Exercise Price
below the par value of the Common Stock.
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject to
the provisions of the Investors' Agreement, including the
restrictions on transfer. Each taker and holder of this
Warrant Certificate by taking or holding the same, consents
and agrees that the registered holder hereof may be treated
by the Company and all other persons dealing with this
Warrant Certificate as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights
represented hereby. The Holder, by its acceptance of this
Warrant, will be subject to the provisions of, and will have
the benefits of, the Investors' Agreement to the extent set
forth therein, including the transfer restrictions and the
registration rights included therein.
(2) Subject to compliance with the transfer
restrictions set forth in the Investors' Agreement, upon
surrender of this Warrant to the Company, together with
the attached Warrant Assignment Form duly executed, the
Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee or assignees named in
such instrument of assignment and, if the Holder's entire
interest is not being assigned, in the name of the Holder
and this Warrant shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the
Company of evidence satisfactory to it (in the exercise of its reasonable
discretion) of the loss, theft, destruction or mutilation of this Warrant
Certificate, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant Certificate, if mutilated, the Company shall execute and deliver a
new Warrant Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this
Warrant and the number of shares of Common Stock for which this Warrant may
be exercised shall be subject to adjustment from time to time upon the
occurrence of certain events as provided in this paragraph (h); provided
that notwithstanding anything to the contrary contained herein, the
Exercise Price shall not be less than the par value of the Common Stock, as
such par value may be reduced from time to time in accordance with
paragraph (e).
(1) In case the Company shall at any time after the
date hereof (i) declare a dividend or make a distribution on
Common Stock payable in Common Stock, (ii) subdivide or
split the outstanding Common Stock, (iii) combine or
reclassify the outstanding Common Stock into a smaller
number of shares, or (iv) issue any shares of its capital
stock in a reclassification of Common Stock (including any
such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation),
the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date
of such subdivision, split, combination or reclassification
shall be proportionately adjusted so that, giving effect to
paragraph (h)(9), the exercise of this Warrant after such
time shall entitle the holder to receive the aggregate
number of shares of Common Stock or other securities of the
Company (or shares of any security into which such shares of
Common Stock have been reclassified pursuant to clause (iii)
or (iv) above) which, if this Warrant had been exercised
immediately prior to such time, such holder would have owned
upon such exercise and been entitled to receive by virtue of
such dividend, distribution, subdivision, split, combination
or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(2) In case the Company shall issue or sell any Common
Stock (other than Common Stock issued (I) upon exercise of
the Warrants, (II) pursuant to any Common Stock related
employee compensation plan of the Company approved by the
Company's Board of Directors, or (II) upon exercise or
conversion of any security the issuance of which caused an
adjustment under paragraphs (h)(3) or (h)(4) hereof), the
Exercise Price to be in effect after such issuance or sale
shall be determined by multiplying the Exercise Price in
effect immediately prior to such issuance or sale by a
fraction, the numerator of which shall be the sum of (x) the
number of shares of Common Stock outstanding immediately
prior to the time of such issuance or sale multiplied by the
Current Market Price Per Common Share immediately prior to
such issuance or sale and (y) the aggregate consideration,
if any, to be received by the Company upon such issuance or
sale, and the denominator of which shall be the product of
the aggregate number of shares of Common Stock outstanding
immediately after such issuance or sale and the Current
Market Price Per Common Share immediately prior to such
issuance or sale but in no event will such fraction exceed
1. In case any portion of the consideration to be received
by the Company shall be in a form other than cash, the fair
market value of such noncash consideration shall be utilized
in the foregoing computation. Such fair market value shall be
determined by the Board of Directors of the Company; provided
that if the Principal Holders shall object to any such
determination, the Board of Directors shall retain an
independent appraiser reasonably satisfactory to the
Principal Holders to determine such fair market value. The
Holder shall be notified promptly of any consideration other
than cash to be received by the Company and furnished with a
description of the consideration and the fair market value
thereof, as determined by the Board of Directors.
(3) In case the Company shall fix a record date for the
issuance of rights, options or warrants to the holders of its
Common Stock or other securities entitling such holders to
subscribe for or purchase for a period expiring within 60
days of such record date shares of Common Stock (or
securities convertible into shares of Common Stock) at a
price per share of Common Stock (or having a conversion
price per share of Common Stock, if a security convertible
into shares of Common Stock) less than the Current Market
Price Per Common Share on such record date, the maximum
number of shares of Common Stock issuable upon exercise of
such rights, options or warrants (or conversion of such
convertible securities) shall be deemed to have been issued
and outstanding as of such record date and the Exercise
Price shall be adjusted pursuant to paragraph (h)(2) hereof,
as though such maximum number of shares of Common Stock had
been so issued for an aggregate consideration payable by the
holders of such rights, options, warrants or convertible
securities prior to their receipt of such shares of Common
Stock. In case any portion of such consideration shall be in
a form other than cash, the fair market value of such
noncash consideration shall be determined as set forth in
paragraph (h)(2) hereof. Such adjustment shall be made
successively whenever such record date is fixed; and in the
event that such rights, options or warrants are not so
issued or expire unexercised, or in the event of a change in
the number of shares of Common Stock to which the holders of
such rights, options or warrants are entitled (other than
pursuant to adjustment provisions therein which are no more
favorable in their entirety than those contained in this
paragraph (h)), the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if
such record date had not been fixed, in the former event, or
the Exercise Price which would then be in effect if such
holder had initially been entitled to such changed number of
shares of Common Stock, in the latter event.
(4) In case the Company shall sell or issue rights,
options (other than options issued pursuant to a plan
described in clause II of paragraph (h)(2)) or warrants
entitling the holders thereof to subscribe for or purchase
Common Stock (or securities convertible into shares of
Common Stock) or shall issue convertible securities, and the
price per share of Common Stock of such rights, options,
warrants or convertible securities (including, in the case
of rights, options or warrants, the price at which they may
be exercised) is less than the Current Market Price Per
Common Share, the maximum number of shares of Common Stock
issuable upon exercise of such rights, options or warrants
or upon conversion of such convertible securities shall be
deemed to have been issued and outstanding as of the date of
such sale or issuance, and the Exercise Price shall be
adjusted pursuant to paragraph (h)(2) hereof as though such
maximum number of shares of Common Stock had been so issued
for an aggregate consideration equal to the aggregate
consideration paid for such rights, options, warrants or
convertible securities and the aggregate consideration
payable by the holders of such rights, options, warrants or
convertible securities prior to their receipt of such shares
of Common Stock. In case any portion of such consideration
shall be in a form other than cash, the fair market value of
such noncash consideration shall be determined as set forth
in paragraph (h)(2) hereof. Such adjustment shall be made
successively whenever such rights, options, warrants or
convertible securities are issued; and in the event that such
rights, options or warrants expire unexercised, or in the
event of a change in the number of shares of Common Stock to
which the holders of such rights, options, warrants or
convertible securities are entitled (other than pursuant to
adjustment provisions therein which are no more favorable in
their entirety than those contained in this paragraph (h)),
the Exercise Price shall again be adjusted to be the
Exercise Price which would then be in effect if such rights,
options, warrants or convertible securities had not been
issued, in the former event, or the Exercise Price which
would then be in effect if such holders had initially been
entitled to such changed number of shares of Common Stock,
in the latter event. No adjustment of the Exercise Price
shall be made pursuant to this paragraph (h)(4) to the
extent that the Exercise Price shall have been adjusted
pursuant to paragraph (h)(3) upon the setting of any record
date relating to such rights, options, warrants or
convertible securities and such adjustment fully reflects
the number of shares of Common Stock to which the holders of
such rights, options, warrants or convertible securities are
entitled and the price payable therefor.
(5) In case the Company shall fix a record date for the
making of a distribution to holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash,
assets or other property (other than dividends payable in
Common Stock or rights, options or warrants referred to in,
and for which an adjustment is made pursuant to, paragraph
(h)(3) hereof), the Exercise Price to be in effect after
such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the
Current Market Price Per Common Share on such record date,
less the fair market value (determined as set forth in
paragraph (h)(2) hereof) of the portion of the assets, cash,
other property or evidence of indebtedness so to be
distributed which is applicable to one share of Common
Stock, and the denominator of which shall be such Current
Market Price Per Common Share. Such adjustments shall be
made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the
Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect if such record date had
not been fixed.
(6) For the purpose of any computation under paragraph
(e) or paragraph (h)(2), (3), (4) or (5) hereof, on any
determination date, the Current Market Price Per Common
Share shall be deemed to be the average (weighted by daily
trading volume) of the Daily Prices (as defined below) per
share of the Common Stock for the 20 consecutive trading days
ending three days prior to such date. "Daily Price" means
(1) if the shares of Common Stock then are listed and traded
on the New York Stock Exchange, Inc. ("NYSE"), the closing
price on such day as reported on the NYSE Composite
Transactions Tape; (2) if the shares of Common Stock then
are not listed and traded on the NYSE, the closing price on
such day as reported by the principal national securities
exchange on which the shares are listed and traded; (3) if
the shares of Common Stock then are not listed and traded on
any such securities exchange, the last reported sale price
on such day on the National Market of the National
Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ"); (4) if the shares of Common Stock then
are not listed and traded on any such securities exchange
and not traded on the NASDAQ National Market, the average of
the highest reported bid and lowest reported asked price on
such day as reported by NASDAQ; or (5) if such shares are
not listed and traded on any such securities exchange, not
traded on the NASDAQ National Market and bid and asked
prices are not reported by NASDAQ, then the average of the
closing bid and asked prices, as reported by The Wall Street
Journal for the over-the-counter market. If on any
determination date the shares of Common Stock are not quoted
by any such organization, the Current Market Price Per
Common Share shall be the fair market value of such shares
on such determination date as determined by the Board of
Directors, without regard to considerations of the lack of
liquidity, applicable regulatory restrictions or any of the
transfer restrictions or other obligations imposed on such
shares set forth in the Investors' Agreement. If the
Principal Holders shall object to any determination by the
Board of Directors of the Current Market Price Per Common
Share, the Current Market Price Per Common Share shall be
the fair market value per share of the applicable class of
Common Stock as determined by an independent appraiser
retained by the Company at its expense and reasonably
acceptable to the Principal Holders. For purposes of any
computation under this paragraph (h), the number of shares
of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the
Company.
(7) No adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent in such price; provided
that any adjustments which by reason of this paragraph
(h)(7) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All
calculations under this paragraph (h) shall be made to the
nearest one tenth of a cent or to the nearest hundredth of a
share, as the case may be.
(8) In the event that, at any time as a result of the
provisions of this paragraph (h), the holder of this Warrant
upon subsequent exercise shall become entitled to receive
any shares of capital stock or other securities of the
Company other than Common Stock, the number of such other
shares so receivable upon exercise of this Warrant shall
thereafter be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to
the provisions contained herein.
(9) Upon each adjustment of the Exercise Price as a
result of the calculations made in paragraphs (h)(1), (2),
(3), (4) or (5) hereof, the number of shares for which this
Warrant is exercisable immediately prior to the making of
such adjustment shall thereafter evidence the right to
purchase, at the adjusted Exercise Price, that number of
shares of Common Stock obtained by (i) multiplying the
number of shares covered by this Warrant immediately prior
to this adjustment of the number of shares by the Exercise
Price in effect immediately prior to such adjustment of the
Exercise Price and (ii) dividing the product so obtained by
the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(10) The Company shall notify all Holders of the
fixing a record date for the purpose of payment of a cash
dividend to holders of Common Stock as soon as reasonably
practicable, but in no event less than 20 days prior to any
such record date.
(11) Not less than 10 nor more than 30 days prior to
the record date or effective date, as the case may be, of
any action which requires or might require an adjustment or
readjustment pursuant to this paragraph (h), the Company
shall forthwith file in the custody of this Secretary or an
Assistant Secretary at its principal executive office and
with its stock transfer agent or its warrant agent, if any,
an officers' certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of
computing such adjustment. Each such officers' certificate
shall be signed by the chairman, president or chief
financial officer of the Company and by the secretary or any
assistant secretary of the Company. Each such officers'
certificate shall be made available at all reasonable times
for inspection by the Holder or any holder of a Warrant
executed and delivered pursuant to paragraph (f) and the
Company shall, forthwith after each such adjustment, mail a
copy, by first-class mail, of such certificate to the Holder.
(12) The Holder shall, at its option, be entitled to
receive, in lieu of the adjustment pursuant to paragraph
(h)(5) otherwise required thereof, on the date of exercise
of the Warrants, the evidences of indebtedness, other
securities, cash, property or other assets which such Holder
would have been entitled to receive if it had exercised its
Warrants for shares of Common Stock immediately prior to the
record date with respect to such distribution. The Holder
may exercise its option under this paragraph (h)(12) by
delivering to the Company a written notice of such exercise
within seven days of its receipt of the certificate of
adjustment required pursuant to paragraph (h)(11) to be
delivered by the Company in connection with such
distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock) or any sale or transfer of
all or substantially all of the assets of the Company or of the Person formed
by such consolidation or resulting from such merger or which acquires such
assets, as the case may be, the Holder shall have the right thereafter to
exercise this Warrant for the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock for which this Warrant may have
been exercised immediately prior to such consolidation, merger, sale or
transfer, assuming (i) such holder of Common Stock is not a Person with which
the Company consolidated or into which the Company merged or which merged into
the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii) in
the case of a consolidation merger, sale or transfer which includes an
election as to the consideration to be received by the holders, such holder
of Common Stock failed to exercise its rights of election, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock held
immediately prior to such consolidation, merger, sale or transfer by other than
a constituent Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this paragraph (i) the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or
transfer by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares).
Adjustments for events subsequent to the effective date of such a
consolidation, merger and sale of assets shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Warrant. In any such
event, effective provisions shall be made in the certificate or articles of
incorporation of the resulting or surviving corporation, in any contract of
sale, conveyance, lease or transfer, or otherwise so that the provisions set
forth herein for the protection of the rights of the Holder shall thereafter
continue to be applicable; and any such resulting or surviving corporation
shall expressly assume the obligation to deliver, upon exercise, such shares
of stock, other securities, cash and property. The provisions of this
paragraph (i) shall similarly apply to successive consolidations, mergers,
sales, leases or transfers. Notwithstanding the foregoing provisions of this
paragraph (i), the treatment of this Warrant in connection with the merger of
the Company with and into Thermadyne Holdings Corporation shall be governed by
paragraph (n).
(j) NOTICES. Any notice, demand or delivery authorized by this
Warrant Certificate shall be in writing and shall be given to the Holder or the
Company as the case may be, at its address (or telecopier number) set forth
below, or such other address (or telecopier number) as shall have been
furnished to the party giving or making such notice, demand or delivery:
If to the Company: Mercury Acquisition Corporation
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, NY 10172
Telecopy: 212-892-3636
Attention: Peter T. Grauer
If to the Holder: [Holder]
[Address]
[Address]
Telecopy:
Attention:
Each such notice, demand or delivery shall be effective (i) if
given by telecopy, when such telecopy is transmitted to the telecopy number
specified herein and the intended recipient confirms the receipt of such
telecopy or (ii) if given by any other means, when received at the address
specified herein.
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant,
the Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder of the Company, including, without limitation, the right to vote,
to receive dividends or other distributions or to receive any notice of
meetings of shareholders or any notice of any proceedings of the Company
except as may be specifically provided for herein.
(l) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS
ARISING HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE
GOVERNED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS.
(m) AMENDMENTS; WAIVERS. Any provision of this Warrant
Certificate may be amended or waived if, and only if, such amendment or waiver
is in writing and signed, in the case of an amendment, by the Holder and the
Company, or in the case of a waiver, by the party against whom the waiver is
to be effective. No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
(n) CONVERSION UPON MERGER. Upon the consummation of the
merger of the Company with and into Thermadyne Holdings Corporation on the
date hereof pursuant to the Plan and Agreement of Merger dated as of January
20, 1998 between the Company and Thermadyne Holdings Corporation, as amended,
this Warrant shall automatically and without further action on the part of the
Holder constitute a Warrant to acquire shares of common stock of Thermadyne
Holdings Corporation on the terms and conditions as are set forth herein.
IN WITNESS WHEREOF, the Company has duly caused this
Warrant Certificate to be signed by its duly authorized officer and to be
dated as of ____ __ , 1998.
MERCURY ACQUISITION
CORPORATION
By
-----------------------------------
Name:
Title:
Acknowledged and Agreed:
[HOLDER]
By
--------------------------
Title:
WARRANT EXERCISE NOTICE
(To be delivered prior to exercise of the Warrant by execution of
the Warrant Exercise Subscription Form)
To: Mercury Acquisition Corporation
The undersigned hereby notifies you of its intention to
exercise the Warrant to purchase shares of Common Stock, par value $0.01 per
share, of Mercury Acquisition Corporation.
The undersigned intends to exercise the Warrant to purchase
__________ shares of Common Stock (the "Shares") at $____ per Share (the
Exercise Price currently in effect pursuant to the Warrant). The undersigned
intends to pay the aggregate Exercise Price for the Shares in cash, certified
or official bank or bank cashier's check (or a combination of cash and check)
as indicated below.
-OR-
The undersigned intends to exercise the Warrant to purchase
__________ shares of Common Stock (the "Shares") and wishes, in lieu of paying
the Exercise Price of $____ per share currently in effect pursuant to the
Warrant, to receive that number of shares reduced by a number of shares of
Common Stock having an aggregate Fair Market Value (as defined in the Warrant)
equal to the aggregate Exercise Price for the Shares.
-OR-
The undersigned intends to exercise the Warrant to purchase
__________ shares of Common Stock (the "Shares") at the Exercise Price of
$____ per share currently in effect pursuant to the Warrant, and intends to
pay $_____ of the aggregate Exercise Price for the Shares in cash, certified
or official bank or bank cashier's check (or a combination of cash and check)
as indicated below, and to deliver as payment of $____ of the aggregate
Exercise Price that number of shares of Common Stock having an aggregate Fair
Market Value (as defined in the Warrant) equal to such non-cash portionof the
aggregate Exercise Price for the Shares.
-OR-
The undersigned intends to exercise the Warrant to purchase
__________ shares of Common Stock (the "Shares") at the Exercise Price of
$____ per share currently in effect pursuant to the Warrant, and intends to
pay $_____ of the aggregate Exercise Price for the Shares in cash, certified
or official bank or bank cashier's check (or a combination of cash and check)
as indicated below, and to deliver as payment of $____ of the aggregate
Exercise Price that number of Warrants which, if exercised, would result in a
number of shares of Common Stock having an aggregate Fair Market Value (as
defined in the Warrant) equal to such non-cash portionof the aggregate
Exercise Price for the Shares.
Date:
------------ ---, ----.
--------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Payment: $___________ cash
$___________ check
____________ shares of Common Stock having a Fair
Market Value of $___________
_____________ Warrants exercisable for shares of Common
Stock having a Fair Market Value of $__________
WARRANT EXERCISE NOTICE
(To be delivered prior to exercise of the Warrant by execution of
the Warrant Exercise Subscription Form)
To: Mercury Acquisition Corporation
The undersigned irrevocably exercises the Warrant for the
purchase of ___________ shares of Common Stock (the "Shares"), par value $0.01
per share, of Mercury Acquisition Corporation (the "Company") at $_____ per
Share (the Exercise Price currently in effect pursuant to the Warrant) and
herewith makes payment of $___________ (such payment being made in cash or by
certified or official bank or bank cashier's check payable to the order of the
Company or by any permitted combination of such cash or check), all on the
terms and conditions specified in the within Warrant Certificate, surrenders
this Warrant Certificate and all right, title and interest therein to the
Company and directs that the Shares deliverable upon the exercise of this
Warrant be registered or placed in the name and at the address specified below
and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the
purchase of ___________ shares of Common Stock (the "Shares"), par value $0.01
per share, of Mercury Acquisition Corporation (the "Company") at $_____ per
Share (the Exercise Price currently in effect pursuant to the Warrant)
(provided that in lieu of payment of $_________, the undersigned will receive
a number of Shares reduced by a number of shares of Common Stock having an
aggregate Fair Market Value (as defined in the Warrant) equal to the aggregate
Exercise Price for the Shares), all on the terms and conditions specified in
the within Warrant Certificate, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the Shares
deliverable upon the exercise of this Warrant be registered or placed in the
name and at the address specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the
purchase __________ shares of Common Stock (the "Shares") at $_______ per Share
(the Exercise Price currently in effect pursuant to the Warrant), and herewith
makes payment of $_____ of the aggregate Exercise Price for the Shares in
cash, certified or official bank or bank cashier's check (or a combination of
cash and check), and herewith delivers as payment of $____ of the aggregate
Exercise Price that number of shares of Common Stock having an aggregate Fair
Market Value (as defined in the Warrant) equal to such non-cash portionof the
aggregate Exercise Price for the Shares, all on the terms and conditions
specified in the within Warrant Certificate, surrenders this Warrant
Certificate and all right, title and interest therein to the Company and
directs that the Shares deliverable upon the exercise of this Warrant be
registered or placed in the name and at the address specified below and
delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the
purchase of __________ shares of Common Stock, par value $0.01 per share, of
Mercury Acquisition Corporation (the "Company") at $____ per share (the
Exercise Price currently in effect pursuant to the Warrant), and herewith
makes payment of $_____ of the aggregate Exercise Price for the Shares in
cash, certified or official bank or bank cashier's check (or a combination of
cash and check), and herewith delivers as payment of $____ of the aggregate
Exercise Price that number of Warrants which, if exercised, would result in a
number of shares of Common Stock having an aggregate Fair Market Value (as
defined in the Warrant) equal to such non-cash portionof the aggregate
Exercise Price for the Shares, all on the terms and conditions specified in the
within Warrant Certificate, surrenders this Warrant Certificate and all right,
title and interest therein to the Company and directs that the Shares
deliverable upon the exercise of this Warrant be registered or placed in the
name and at the address specified below and delivered thereto.
Date:
------------ ---, ----.
--------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the
within Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
WARRANT ASSIGNMENT FORM
-----------------------
Dated
------------
FOR VALUE RECEIVED, ______________________________
hereby sells, assigns and transfers unto,
_______________________________________ (the "Assignee"),
(please type or print in block letters)
_________________________________________________________
(insert address)
its right to purchase up to shares of Common Stock
represented by this Warrant and does hereby irrevocably
constitute and appoint _______________________ Attorney, to
transfer the same on the books of the Company, with full
power of substitution in the premises.
Signature
-----------------
EXHIBIT 6
INVESTORS' AGREEMENT
dated as of
May 22, 1998
by and among
THERMADYNE HOLDINGS CORPORATION
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS II-A, L.P.,
DLJ OFFSHORE PARTNERS II, C.V.,
DLJ DIVERSIFIED PARTNERS, L.P.
DLJ DIVERSIFIED PARTNERS -A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.
DLJ MILLENNIUM PARTNERS-A, L.P.
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ FIRST ESC, L.P.,
DLJ ESC II, L.P.
and certain other Stockholders named herein
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions.............................................2
ARTICLE 2
Corporate Governance
Section 2.1. Composition of the Board...............................10
Section 2.2. Removal................................................10
Section 2.3. Vacancies..............................................11
Section 2.4. Meetings...............................................11
Section 2.5. Action by the Board....................................11
Section 2.6. Conflicting Charter or Bylaw Provisions................11
ARTICLE 3
Restrictions on Transfer
Section 3.1. General................................................12
Section 3.2. Legends................................................12
Section 3.3. Permitted Transferees..................................13
Section 3.4. Restrictions on Transfers by Management Stockholders...13
ARTICLE 4
Tag-along Rights; Drag-along Rights
Section 4.1. Rights to Participate in Transfer......................15
Section 4.2. Right to Compel Participation in Certain Transfers.....16
Section 4.3. Certain Rights.........................................18
ARTICLE 5
Registration Rights
Section 5.1. Demand Registration....................................18
Section 5.2. Incidental Registration................................21
Section 5.3. Holdback Agreements....................................23
Section 5.4. Registration Procedures................................23
Section 5.5. Indemnification by the Company.........................26
Section 5.6. Indemnification by Participating Stockholders..........27
Section 5.7. Conduct of Indemnification Proceedings.................28
Section 5.8. Contribution...........................................28
Section 5.9. Participation in Public Offering.......................30
Section 5.10. Other Indemnification..................................30
Section 5.11. Cooperation by the Company.............................30
ARTICLE 6
Miscellaneous
Section 6.1. Entire Agreement.......................................31
Section 6.2. Binding Effect; Benefit................................31
Section 6.3. Exclusive Financial and Investment Banking Advisor.....31
Section 6.4. Assignability..........................................31
Section 6.5. Amendment; Waiver; Termination.........................31
Section 6.6. Notices................................................32
Section 6.7. Headings...............................................33
Section 6.8. Counterparts...........................................33
Section 6.9. Applicable Law.........................................33
Section 6.10. Specific Enforcement...................................33
Section 6.11. Consent to Jurisdiction................................33
INVESTORS' AGREEMENT
AGREEMENT dated as of May 22, 1998 among (i) Thermadyne
Holdings Corporation, a Delaware corporation (the "Company"), (ii) DLJ
Merchant Banking Partners II, L.P., a Delaware limited partnership, DLJ
Offshore Partners II, C.V. a Netherlands Antilles limited partnership, DLJ
Merchant Banking Partners II-A, L.P., a Delaware limited partnership, DLJ
Diversified Partners, L.P., a Delaware limited partnership, DLJ Diversified
Partners-A, L.P., a Delaware limited partnership, DLJ EAB Partners, L.P., a
Delaware limited partnership, DLJ Millennium Partners, L.P., a Delaware
limited partnership, DLJ Millennium Partners-A, L.P., a Delaware limited
partnership, DLJMB Funding II, Inc., a Delaware corporation, UK Investment
Plan 1997 Partners, a Delaware partnership, DLJ First ESC, L.P., a Delaware
limited partnership and DLJ ESC II, L.P., a Delaware limited partnership,
(each of the foregoing, a "DLJ Entity", and collectively, the "DLJ Entities")
and (iii) certain other Persons listed on the signature pages hereof (each a
"Stockholder" and collectively, the "Management Stockholders").
W I T N E S S E T H:
WHEREAS, certain parties hereto have acquired or will be
acquiring securities of Mercury Acquisition Corporation, the predecessor by
merger to the Company, and/or the Company;
WHEREAS, pursuant to the terms of the Merger Agreement (as
defined below) Mercury Acquisition Corporation has been merged with and into
the Company with the Company as the surviving corporation;
WHEREAS, the parties hereto desire to enter into this Agreement
to govern certain of their rights, duties and obligations after consummation
of the transactions contemplated by the Merger Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and in the Merger Agreement, the parties hereto agree as
follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. (a) The following terms, as
used herein, have the following meanings:
"Adverse Person" means any Person whom the Board of
Directors of the Company determines is a competitor or a potential
competitor of the Company or its subsidiaries.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person; provided that no stockholder of the Company shall
be deemed an Affiliate of any other stockholder of the Company solely by
reason of any investment in the Company. For the purpose of this
definition, the term "control" (including with correlative meanings, the
terms "controlling", "controlled by" and "under common control with"), when
used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a
successor to the assets held by a trust established under an employee benefit
plan subject to ERISA or any other trust established directly or indirectly
under such plan or any other such plan having the same sponsor.
"Aggregate Ownership" means, with respect to any Stockholder or
group of Stockholders, and with respect to any class of Company Securities,
the total amount of such securities "beneficially owned" (as such term is
defined in Rule 13d-3 under the Exchange Act) (without duplication) by such
Stockholder or group of Stockholders as of the date of such calculation (but
adjusted in accordance with the proviso below), calculated on a Fully Diluted
basis and taking into account any stock dividend, stock split or reverse stock
split; provided that such amount of securities shall be increased (without
duplication) with respect to any Other Stockholder, by any stock appreciation
rights, options, warrants (including the Warrants) or other rights to purchase
or subscribe for Company Securities of such Other Stockholder as and when such
stock appreciation rights, options, warrants or other rights have vested.
"Benchmark Securities" means the aggregate number of Common
Shares, Preferred Shares or Warrants sold or proposed to be sold by the DLJ
Entities (other than to their Permitted Transferees) subsequent to the date
hereof until the first to occur of (i) the aggregate number of Common Shares,
Preferred Shares or Warrants so sold or proposed to be sold by the DLJ
Entities (other than to their Permitted Transferees) equals 25% of the Initial
Ownership of Common Stock, Preferred Stock or Warrants of the DLJ Entities and
(ii) the aggregate amount in cash (net of any commissions, fees or expenses)
collectively received or to be received by the DLJ Entities, without
duplication, as a result of the sale subsequent to the date hereof or proposed
sale of any such Common Shares, Preferred Shares or Warrants (other than to
their Permitted Transferees) shall equal the aggregate amount invested by the
DLJ Entities as of such date in Common Shares, Preferred Shares or Warrants.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Bylaws" means the Amended and Restated Bylaws of the Company,
as amended from time to time.
"Change of Control" means:
(a) any "person" (as such term is used in Section 3(a)(9)
and 13(d)(3) of the Exchange Act) other than (A) the DLJ
Entities and/or their respective Permitted Transferees or (B)
any "group" (within the meaning of such Section 13(d)(3)) of
which the DLJ Entities constitute a majority (on the basis of
ownership interest), acquires, directly or indirectly, by
virtue of the consummation of any purchase, merger or other
combination, securities of the Company representing more than
51% of the combined voting power of the Company's then
outstanding voting securities with respect to matters submitted
to a vote of the stockholders generally; or
(b) a sale or transfer by the Company or any of its
Subsidiaries of substantially all of the consolidated assets of
the Company and its Subsidiaries to an entity which is not an
Affiliate of the Company prior to such sale or transfer.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Coinvestment Shares" means Shares of the Company purchased
under the Thermadyne Investment Program and designated as Coinvestment Shares.
"Committee" means a committee of the Board designated by the
Board to administer the Plan and composed of not less than the minimum number
of persons from time to time required by Rule 16b-3, each of whom, to the
extent necessary to comply with Rule 16b-3 only, is a "Non-Employee Director"
within the meaning of Rule 16b-3. Until otherwise determined by the Board, the
full Board shall be the Committee under the Plan.
"Charter" means the Amended and Restated Certificate of
Incorporation of the Company, as amended from time to time.
"Closing Date" means May 22, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company and any stock into which such Common Stock may
thereafter be converted or changed, and "Common Shares" means shares of Common
Stock.
"Company Securities" means the Common Stock and securities
convertible into or exchangeable for Common Stock, Preferred Stock and
options, warrants (including the Warrants) or other rights to acquire Common
Stock, Preferred Stock or any other equity security issued by the Company.
"Drag-Along Portion" means, with respect to any Other
Stockholder and any class of Company Securities, the number of such class of
Company Securities beneficially owned by such Other Stockholder on a Fully
Diluted basis (but without duplication) multiplied by a fraction, the
numerator of which is the number of such class of Company Securities proposed
to be sold by the DLJ Entities on behalf of the DLJ Entities and the Other
Stockholders and the denominator of which is the total number of such class of
Company Securities on a Fully Diluted basis beneficially owned by the
Stockholders.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Founding Stockholder" means either of Randall E. Curran or
James H. Tate.
"Fully Diluted" means, with respect to Common Stock and without
duplication, all outstanding Shares and all Shares issuable in respect of
securities convertible into or exchangeable for Shares, stock appreciation
rights, options, warrants (including the Warrants) and other rights to purchase
or subscribe for Shares or securities convertible into or exchangeable for
Common Stock; provided that, to the extent any of the foregoing stock
appreciation rights, options, warrants or other rights to purchase or subscribe
for Shares are subject to vesting, the Shares subject to vesting shall be
included in the definition of "Fully Diluted" only upon and to the extent of
such vesting.
"First Public Offering" means the first sale after the date
hereof of Common Stock pursuant to an effective registration statement under
the Securities Act (other than a registration statement on Form S-8 or any
successor form).
"Initial Ownership" means, with respect to any Stockholder and
any class of Company Securities, the number of shares of such class of Company
Securities beneficially owned (and (without duplication) which such Persons
have the right to acquire) as of the date hereof, or in the case of any Person
that shall become a party to this Agreement on a later date, as of such date,
taking into account any stock split, stock dividend, reverse stock split or
similar event.
"Other Stockholders" means all Stockholders other than the DLJ
Entities, and their respective Permitted Transferees.
"Permitted Transferee" means:
(i) in the case of any DLJ Entity (A) any other DLJ
Entity, (B) any general or limited partner of any DLJ Entity
(a "DLJ Partner"), and any corporation, partnership,
Affiliated Employee Benefit Trust or other entity that is an
Affiliate of any DLJ Partner (collectively, the "DLJ
Affiliates"), (C) any managing director, general partner,
director, limited partner, officer or employee of any DLJ
Entity or of any DLJ Affiliate, or the heirs, executors,
administrators, testamentary trustees, legatees or
beneficiaries of any of the foregoing persons referred to in
this clause (C) (collectively, "DLJ Associates"), (D) a
trust, the beneficiaries of which, or a corporation, limited
liability company or partnership, the stockholders, members
or general or limited partners of which, include only DLJ
Entities, DLJ Affiliates, DLJ Associates, their spouses or
their lineal descendants or (E) a voting trustee for one or
more DLJ Entities, DLJ Affiliates or DLJ Associates under
the terms of a voting trust designed to conform with the
requirements of the Insurance Law of the State of New York;
and
(ii) in the case of any Other Stockholder (A) any Other
Stockholder, (B) a Person to whom Shares are transferred from
such Other Stockholder (1) by will or the laws of descent and
distribution or (2) by gift without consideration of any
kind; provided that, in the case of clause (2), such
transferee is the issue or spouse of such Other Stockholder
or (C) a trust that is for the exclusive benefit of such
Other Stockholder or its Permitted Transferees under (B)
above.
"Person" means an individual, corporation, partnership,
association, trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Preferred Stock" means the 13% senior exchangeable preferred
stock, par value $0.01 per share and due 2010 of the Company, and "Preferred
Shares" means shares of Preferred Stock.
"Pro Rata Portion" means the number of Shares a Stockholder
holds (either Purchased Shares or non-Purchased Shares, as the case may be)
multiplied by a fraction, the numerator of which is the number of Shares to be
sold by the DLJ Entities and their Permitted Transferees in a Public Offering
and the denominator of which is the total number of Shares, on a Fully Diluted
basis, held in the aggregate by the DLJ Entities and their Permitted
Transferees prior to such Public Offering.
"Public Offering" means an underwritten public offering of
Registrable Securities of the Company pursuant to an effective registration
statement under the Securities Act.
"Purchased Shares" means those shares of Common Stock purchased
by a Management Stockholder on the Closing Date for cash and/or a promissory
note contemplated in the Thermadyne Investment Program.
"Registrable Securities" means any Shares or Warrants until (i)
a registration statement covering such Shares or Warrants has been declared
effective by the SEC and such shares have been disposed of pursuant to such
effective registration statement, (ii) such Shares or Warrants are sold under
circumstances in which all of the applicable conditions of Rule 144 are met or
under which they may be sold pursuant to Rule 144(k) or (iii) such Shares or
Warrants are otherwise transferred, the Company has delivered a new
certificate or other evidence of ownership for such Shares or Warrants not
bearing the legend required pursuant to this Agreement and such Shares or
Warrants may be resold without subsequent registration under the Securities
Act.
"Registration Expenses" means (i) all registration and filing
fees, (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Shares or Warrants), (iii) printing expenses,
(iv) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) reasonable fees and disbursements of counsel for the
Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters requested pursuant to
Section 5.4(h)), (vi) the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration, (vii) reasonable
fees and expenses of one counsel for the Stockholders participating in the
offering selected (A) by the DLJ Entities, in the case of any offering in
which such entities participate, or (B) in any other case, by the Other
Stockholders holding the majority of Shares or Warrants to be sold for the
account of all Other Stockholders in the offering, (viii) fees and expenses in
connection with any review of underwriting arrangements by the National
Association of Securities Dealers, Inc. (the "NASD") including fees and
expenses of any "qualified independent underwriter" and (ix) fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities; but shall not include any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any
out-of-pocket expenses (except as set forth in clause (vii) above) of the
Stockholders (or the agents who manage their accounts) or any fees and
expenses of underwriter's counsel.
"Restriction Termination Date" means the earlier to occur of
(a) the second anniversary of the First Public Offering and (b) the fifth
anniversary of the Closing Date.
"Rule 144" means Rule 144 and Rule 144A (or any successor
provisions) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of Common Stock and shares of Preferred
Stock.
"Stockholder" means each Person (other than the Company) who
shall be a party to or bound by this Agreement, whether in connection with the
execution and delivery hereof as of the date hereof, pursuant to Section 6.4,
or otherwise, so long as such Person shall (i) beneficially own any Company
Securities, or (ii) have any stock appreciation rights, options, warrants or
other rights to purchase or subscribe for Company Securities.
"Subject Securities" means any Company Securities beneficially
owned by the Management Stockholders.
"Tag-Along Portion" means
(i) where the Selling Person is selling Preferred Stock, the
number of shares of Preferred Stock held by the Tagging Person or the Selling
Person, as the case may be, multiplied by a fraction, the numerator of which
is the number of shares of Preferred Stock proposed to be sold in the
Tag-Along Sale pursuant to Section 4.1, and the denominator of which is the
aggregate number of shares of Preferred Stock owned by all Stockholders;
(ii) where the Selling Person is selling Common Stock, the
number of shares of Common Stock held (or, without duplication, acquirable
under the Warrants) by the Tagging Person or the Selling Person, as the case
may be, multiplied by a fraction, the numerator of which is the number of
shares of Common Stock proposed to be sold in the Tag-Along Sale pursuant to
Section 4.1, and the denominator of which is the aggregate number of shares of
Common Stock on a Fully Diluted basis owned by all Stockholders, and
(iii) where the Selling Person is selling Warrants, the number
of shares of Common Stock held (or, without duplication, acquirable under the
Warrants) by the Tagging Person or the Selling Person, as the case may be,
multiplied by a fraction the numerator of which is the number of shares of
Common Stock for which the Warrants proposed to be sold in the Tag-Along Sale
pursuant to Section 4.1 are exercisable, and the denominator of which is the
aggregate number of shares of Common Stock on a Fully Diluted basis owned by
all Stockholders,
provided that where a Tag-Along Right includes the right to sell
Common Stock, any holder of Warrants may, in lieu of exercising Warrants,
transfer Warrants for some or all of that number of shares of Common Stock as
would otherwise have constituted its Tag-Along Portion, in which event the
price to be received with respect to each such Warrant shall be the price per
share of Common Stock applicable to the Tag-Along Offer, less the then
applicable exercise price of the Warrants owned by such holder.
"Thermadyne Investment Program" means the Thermadyne Holdings
Corporation Direct Investment Program.
"Thermadyne New Option Program" means the Thermadyne Holdings
Corporation Management Incentive Plan.
"Third Party" means a prospective purchaser of Shares in an
arm's-length transaction from a Stockholder where such purchaser is not a
Permitted Transferee of such Stockholder.
"Warrants" means the warrants issued by the Company to
Stockholders for the purchase of an aggregate of 353,428 shares of Common
Stock (subject to adjustment as provided for herein).
"Warrant Shares" means shares of Common Stock issuable by the
Company upon exercise of the Warrants.
(b) The term "DLJ Entities", to the extent such entities shall have
transferred any of their Shares to "Permitted Transferees", shall mean the DLJ
Entities and the Permitted Transferees of the DLJ Entities, taken together, and
any right or action that may be taken at the election of the DLJ Entities may
be taken at the election of the DLJ Entities and such Permitted Transferees.
(c) The term "Other Stockholders", to the extent such stockholders
shall have transferred any of their Shares to "Permitted Transferees", shall
mean the Other Stockholders and the Permitted Transferees of the Other
Stockholders, taken together, and any right or action that may be taken at the
election of the Other Stockholders may be taken at the election of the Other
Stockholders and such Permitted Transferees.
(d) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Applicable Holdback Period 5.03
beneficially own 1.1(a)
Demand Registration 5.1(e)
DLJSC 6.3
Drag-Along Rights 4.2(a)
Holders 5.1(e)
Incidental Registration 5.1(e)
Indemnified Party 5.7
Indemnifying Party 5.7
Independent Director 2.1(a)
Inspectors 5.4(g)
Maximum Offering Size 5.1(e)
Nominee 2.3(a)
Records 5.4(g)
Section 4.01 Response Notice 4.1(a)
Section 4.02 Notice 4.2(a)
Section 4.02 Notice Period 4.2(a)
Section 4.02 Sale 4.2(a)
Section 4.02 Sale Price 4.2(a)
Selling Person 4.1(a)
Selling Stockholder 5.1(e)
Tag-Along Notice 4.1(a)
Tag-Along Notice Period 4.1(a)
Tag-Along Offer 4.1(a)
Tag-Along Right 4.1(a)
Tag-Along Sale 4.1(a)
Tagging Person 4.1(a)
transfer 3.1(a)
ARTICLE 2
Corporate Governance
Section 2.1. Composition of the Board. (a) The Board shall
consist initially of seven directors, five of whom will be designated by DLJ
Merchant Banking Partners II, L.P., one of whom will be Randall E. Curran and
one of whom will be James H. Tate, in each case for so long as such person is
employed by the Company; provided that at least one of the directors
designated by DLJ Merchant Banking Partners II, L.P. shall not be either an
"Affiliate" or an "Associate" (as such terms are used within the meaning of
Rule 12b-2 under the Exchange Act) of the DLJ Entities or the Other
Stockholders (the "Independent Director") and such Independent Director shall
be designated by DLJ Merchant Banking Partners II, L.P. after consultation
with the Other Stockholders. The DLJ Entities shall be permitted at any time
to increase the number of directors from seven to eight and DLJ Merchant
Banking Partners II, L.P. shall be permitted to designate the eighth director.
(b) Each Stockholder entitled to vote for the election of
directors to the Board agrees that it will vote its Shares or execute written
consents, as the case may be, and take all other necessary action (including
causing the Company to call a special meeting of stockholders) in order to
ensure that the composition of the Board is as set forth in this Section 2.1;
provided that the Other Stockholders shall not be required to vote for the
board-designees of the DLJ Entities if the aggregate number of Common Shares
held by the DLJ Entities is less than 10% of their Initial Ownership of Common
Shares.
Section 2.2. Removal. Each Stockholder agrees that if, at any
time, it is then entitled to vote for the removal of directors of the Company,
it will not vote any of its Shares in favor of the removal of any director who
shall have been designated or nominated pursuant to Section 2.1 unless such
removal shall be for cause or the Persons entitled to designate or nominate
such director shall have consented to such removal in writing.
Section 2.3. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without cause) or otherwise, there
shall exist or occur any vacancy of the Board:
(a) the Person or Persons entitled under Section 2.1 to designate
or nominate such director whose death, disability, retirement, resignation or
removal resulted in such vacancy may designate another individual (the
"Nominee") to fill such capacity and serve as a director of the Company; and
(b) each Stockholder then entitled to vote for the election of the
Nominee as a director of the Company agrees that it will vote its Shares, or
execute a written consent, as the case may be, in order to ensure that the
Nominee is elected to the Board.
Section 2.4. Meetings. The Board shall hold a regularly
scheduled meeting at least once every calendar quarter.
Section 2.5. Action by the Board. (a) A quorum of the Board
shall consist of four directors, of whom at least three must be designees of
DLJ Merchant Banking Partners II, L.P.; provided that the DLJ Entities shall
have the right at any time to increase the number of directors necessary to
constitute a quorum of the Board. All actions of the Board shall require the
affirmative vote of at least a majority of the directors present at a duly
convened meeting of the Board at which a quorum is present or the unanimous
written consent of the Board; provided that, in the event there is a vacancy
on the Board and an individual has been nominated to fill such vacancy, the
first order of business shall be to fill such vacancy.
(b) The Board may create executive, compensation and audit
committees, as well as such other committees as it may determine. The DLJ
Entities shall be entitled to majority representation on any committee created
by the Board and, to the extent not prohibited by or inadvisable under
applicable law, the Other Stockholders shall be entitled to at least one
representative on any such committee.
Section 2.6. Conflicting Charter or Bylaw Provisions. Each
Stockholder shall vote its Shares or execute written consents, as the case may
be, and take all other actions necessary, to ensure that the Company's Charter
and Bylaws facilitate and do not at any time conflict with any provision of
this Agreement.
ARTICLE 3
Restrictions on Transfer
Section 3.1. General. (a) Each Stockholder understands and
agrees that the Company Securities purchased pursuant to the applicable
subscription agreement or the Thermadyne Investment Program and the Thermadyne
New Option Program have not been registered under the Securities Act and are
restricted securities. Each Stockholder agrees that it will not, directly or
indirectly, sell, assign, transfer, grant a participation in, pledge or
otherwise dispose of ("transfer") any Company Securities (or solicit any
offers to buy or otherwise acquire, or take a pledge of any Company
Securities) except in compliance with the Securities Act and the terms and
conditions of this Agreement.
Any attempt to transfer any Company Securities not in
compliance with this Agreement shall be null and void and the Company shall
not, and shall cause any transfer agent not to, give any effect in the
Company's stock records to such attempted transfer.
Section 3.2. Legends. In addition to any other legend that
may be required, each certificate for shares of Common Stock or Preferred
Stock and each Warrant that is issued to any Stockholder shall bear a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT
DATED AS OF MAY 22, 1998, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
THERMADYNE HOLDINGS CORPORATION OR ANY SUCCESSOR THERETO."
If any Company Securities shall cease to be Registrable
Securities under clause (i) or clause (ii) of the definition thereof, the
Company shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such securities without the first sentence
of the legend required by this Section endorsed thereon. If any Company
Securities cease to be subject to any and all restrictions on transfer set
forth in this Agreement, the Company shall, upon the written request of the
holder thereof, issue to such holder a new certificate evidencing such Company
Securities without the second sentence of the legend required by this Section
endorsed thereon.
Section 3.3. Permitted Transferees. Notwithstanding anything
in this Agreement to the contrary, any Stockholder may at any time transfer
any or all of its Company Securities to one or more of its Permitted
Transferees without the consent of the Board or any other Stockholder or group
of Stockholders and without compliance with Sections 3.4 and 4.1 so long as
(a) such Permitted Transferee shall have agreed in writing to be bound by the
terms of this Agreement and (b) the transfer to such Permitted Transferee is
not in violation of applicable federal or state securities laws.
Section 3.4. Restrictions on Transfers by Management
Stockholders.
(a) Each Management Stockholder and each Permitted Transferee of
such Management Stockholder may transfer its Company Securities only as
follows:
(i) in a transfer made in compliance with Section 4.1 or
4.2, 4.3 or as permitted or required by the Thermadyne Investment
Program, the Thermadyne New Option Program or any employment contract
between the Company or any Subsidiary and an employee;
(ii) subject to the Public Offering Limitations, in a Public
Offering in connection with the exercise of its rights under Article 5
hereof;
(iii) in a transfer made at the conclusion of the Applicable
Holdback Period (as defined in Section 5.03) following a Public
Offering, in compliance with Rule 144 promulgated under the Securities
Act; provided, however, that until the Restriction Termination Date,
the Aggregate Ownership of such Management Stockholder as a result of
such transfer shall be equal to or exceed the greater of (x) 50% of
such Management Stockholder's Initial Ownership of Common Stock and
(y) the percentage of such Management Stockholder's Initial Ownership
that is equal to the Aggregate Ownership of the DLJ Entities as a
percentage of the DLJ Entities' Initial Ownership; or
(iv) following the Restriction Termination Date, to any Third
Party other than an Adverse Person for consideration consisting solely
of cash, provided, however, that the number of Shares transferred by
such Management Stockholder pursuant to this Section 3.04(a)(iv) in
any twelve-month period shall not exceed 20% of the greater of (x)
such Management Stockholder's Aggregate Ownership at the beginning of
such twelve month period and (y) such Management Stockholder's
Aggregate Ownership as of the date hereof.
For purposes of this Agreement, "Public Offering Limitations"
means (A) except as set forth in the proviso at the end of this paragraph, no
Management Stockholder shall be permitted to exercise its rights under Section
5.02 hereof (x) with respect to the First Public Offering and (y) until such
time as the Aggregate Ownership of the DLJ Entities shall be less than 50% of
their aggregate Initial Ownership of Common Stock and (B) in each Public
Offering following the First Public Offering, such Management Stockholder
shall be entitled to transfer a number of Shares not exceeding such Management
Stockholder's Pro Rata Portion of non-Purchased Shares; provided, however,
that notwithstanding the restrictions set forth in clauses (A) and (B), each
Management Stockholder shall be permitted to exercise its rights pursuant to
Section 5.2 hereof in respect of such Management Stockholder's Pro Rata
Portion of its Purchased Shares in any Public Offering.
(b) The provisions of Section 3.04(a) shall terminate upon the
earliest to occur of (i) the fifth anniversary of the Closing Date and (ii) a
Change of Control. Notwithstanding the foregoing sentence, the provisions of
Section 3.04(a) shall not terminate with respect to any Management
Stockholder's Shares which shall have been pledged to the Company as security
in connection with any indebtedness for borrowed money owed by such Management
Stockholder to the Company unless the proceeds from the sale of such Shares
are applied to repay such indebtedness in full.
(c) In addition to any other restriction contained in this
Agreement and notwithstanding any other provision of this Section 3.4, neither
a Management Stockholder nor any Permitted Transferee thereof may transfer
Coinvestment Shares (as defined in the Thermadyne Investment Program) prior
to the date such Shares have vested in accordance with the terms of the
Thermadyne Investment Program and the relevant purchase agreement thereunder.
ARTICLE 4
Tag-along Rights; Drag-along Rights
Section 4.1. Rights to Participate in Transfer. (a) If DLJ
Entities (the "Selling Person") propose to transfer (other than transfers of
shares of Company Securities (i) in a Public Offering, (ii) to any Permitted
Transferee of any of the DLJ Entities or (iii) any transfer of Preferred Stock
or any transfer of Warrants made in conjunction with such a transfer of
Preferred Stock), in a transaction otherwise permitted by Article 3 hereof, a
number of Company Securities of any class of securities of the Company equal
to or exceeding 10% of the Aggregate Ownership of the DLJ Entities of
securities of such class in a single transaction or in a series of related
transactions on the date of the proposed sale (a "Tag-Along Sale"), the Other
Stockholders may, at their option, elect to exercise their rights under this
Section 4.1 (each such Stockholder, a "Tagging Person"). In the event of such
a proposed transfer, the Selling Person shall provide each Other Stockholder
written notice of the terms and conditions of such proposed transfer
("Tag-Along Notice") and offer each Tagging Person the opportunity to
participate in such sale. The Tag-Along Notice shall identify the number and
type of Company Securities subject to the offer ("Tag-Along Offer"), the cash
price at which the transfer is proposed to be made, and all other material
terms and conditions of the Tag-Along Offer, including the form of the
proposed agreement, if any. From the date of the Tag-Along Notice, each
Tagging Person shall have the right (a "Tag-Along Right"), exercisable by
written notice ("Section 4.01 Response Notice") given to the Selling Person
within 10 Business Days (the "Tag-Along Notice Period"), to request that the
Selling Person include in the proposed transfer the number of Company
Securities held by such Tagging Person as is specified in such notice;
provided that if the aggregate number of Company Securities proposed to be
sold by the Selling Person and all Tagging Persons in such transaction exceeds
the number of Company Securities which can be sold on the terms and conditions
set forth in the Tag-Along Notice, then only the Tag-Along Portion of Company
Securities of each Tagging Person shall be sold pursuant to the Tag-Along
Offer and the Selling Person shall sell its Tag-Along Portion of Company
Securities and such additional Company Securities as permitted by Section
4.01(d). If the Tagging Persons exercise their Tag-Along Rights hereunder,
each Tagging Person shall deliver, together with its Section 4.01 Response
Notice, to the Selling Person the certificate or certificates representing the
Company Securities of such Tagging Person to be included in the transfer,
together with a limited power-of-attorney authorizing the Selling Person to
transfer such Securities on the terms set forth in the Tag-Along Notice.
Delivery of such certificate or certificates representing the Company
Securities to be transferred and the limited power-of-attorney authorizing the
Selling Person to transfer such Company Securities shall constitute an
irrevocable acceptance of the Tag-Along Offer by such Tagging Persons. If, at
the end of a 120 day period after such delivery, the Selling Person has not
completed the transfer of all such Company Securities on substantially the
same terms and conditions set forth in the Tag-Along Notice, the Selling
Person shall return to each Tagging Person the limited power-of-attorney (and
all copies thereof) together with all certificates representing the Company
Securities which such Tagging Person delivered for transfer pursuant to this
Section 4.1.
(b) Concurrently with the consummation of the Tag-Along Sale, the
Selling Person shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (by bank or certified check) for the
Company Securities of the Tagging Persons transferred pursuant thereto, and
shall, promptly after the consummation of such Tag-Along Sale, furnish such
other evidence of the completion and time of completion of such transfer and
the terms thereof as may be reasonably requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period any
Tagging Person shall not have elected to participate in the Tag-Along Sale,
such Tagging Person will be deemed to have waived its rights under Section
4.1(a) with respect to the transfer of its securities pursuant to such
Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-Along Rights
or elects to exercise its Tag-Along Rights with respect to less than such
Tagging Person's Tag-Along Portion, the DLJ Entities shall be entitled to
transfer, pursuant to the Tag-Along Offer, a number of Company Securities held
by the DLJ Entities equal to the number of Company Securities constituting the
portion of such Tagging Person's Tag-Along Portion with respect to which
Tag-Along Rights were not exercised.
(e) The DLJ Entities and any Tagging Person who exercises the
Tag-Along Rights pursuant to this Section 4.1 may sell the Company Securities
subject to the Tag-Along Offer on the terms and conditions set forth in the
Tag-Along Notice (provided, however, that the cash price payable in any such
sale may exceed the cash price specified in the Tag-Along Notice by up to 10%)
within 120 days of the date on which Tag-Along Rights shall have been waived,
exercised or expire.
Section 4.2. Right to Compel Participation in Certain
Transfers. (a) If (i) the DLJ Entities propose to transfer not less than 50%
of their Initial Ownership of Common Stock to a Third Party in a bona fide
sale or (ii) the DLJ Entities propose a transfer in which the shares of Common
Stock to be transferred by the DLJ Entities and their Permitted Transferees
constitute more than 50% of the outstanding shares of Common Stock (a "Section
4.02 Sale"), the DLJ Entities may at their option require all Other
Stockholders to sell the Drag-Along Portion of the Subject Securities
("Drag-Along Rights") then held by every Other Stockholder, and (subject to
and at the closing of the Section 4.02 Sale) to exercise all, but not less
than all, of the options or Warrants held by every Other Stockholder and to
sell all of the shares of Common Stock received upon such exercise to such
Third Party, for the same consideration per share of Common Stock and
otherwise on the same terms and conditions as the DLJ Entities; provided that
any Other Stockholder who holds options or Warrants the exercise price per
share of which is greater than the per share price at which the Shares are to
be sold to the Third Party may, if required by the DLJ Entities to exercise
such options, in place of such exercise, submit to irrevocable cancellation
thereof without any liability for payment of any exercise price with respect
thereto. In the event the Section 4.02 Sale is not consummated with respect
to any shares acquired upon exercise of such options or Warrants, or the
Section 4.02 Sale is not consummated, such options or Warrants shall be deemed
not to have been exercised or canceled, as applicable. DLJMB shall provide
written notice of such Section 4.02 Sale to the Other Stockholders (a "Section
4.02 Notice") not later than the 15th day prior to the proposed Section 4.02
Sale. The Section 4.02 Notice shall identify the transferee, the number of
Subject Securities, the consideration for which a transfer is proposed to be
made (the "Section 4.02 Sale Price") and all other material terms and
conditions of the Section 4.02 Sale. The number of shares of Common Stock,
Preferred Stock, and/or Warrants to be sold by each Other Stockholder will be
the Drag-Along Portion of the shares of Common Stock, Preferred Stock, and/or
Warrants that such Other Stockholder owns. Subject to Sections 4.02 and 4.03,
each Other Stockholder shall be required to participate in the Section 4.02
Sale on the terms and conditions set forth in the Section 4.02 Notice and to
tender all its Subject Securities as set forth below. The price payable in
such transfer shall be the Section 4.02 Sale Price. Not later than the 10th
day following the date of the Section 4.02 Notice (the "Section 4.02 Notice
Period"), each of the Other Stockholders shall deliver to a representative of
DLJMB designated in the Section 4.02 Notice certificates representing all
Subject Securities representing the Drag Along Portion held by such Other
Stockholder, duly endorsed, together with all other documents required to be
executed in connection with such Section 4.02 Sale. If an Other Stockholder
should fail to deliver such certificates to DLJMB, the Company shall cause the
books and records of the Company to show that such Subject Securities are
bound by the provisions of this Section 4.02 and Section 4.03 and that such
Subject Securities shall be transferred to the purchaser of the Subject
Securities immediately upon surrender for transfer by the holder thereof.
(b) The DLJ Entities shall have a period of 90 days from the date
of receipt of the Section 4.02 Notice to consummate the Section 4.02 Sale on
the terms and conditions set forth in such Section 4.02 Sale Notice. If the
Section 4.02 Sale shall not have been consummated during such period, DLJMB
shall return to each of the Other Stockholders all certificates representing
Subject Securities that such Other Stockholder delivered for transfer pursuant
hereto, together with any documents in the possession of DLJMB executed by the
Other Stockholder in connection with such proposed transfer, and all the
restrictions on transfer contained in this Agreement or otherwise applicable at
such time with respect to Common Stock owned by the Other Stockholders shall
again be in effect.
(c) Concurrently with the consummation of the transfer of Company
Securities pursuant to this Section 4.02 and Section 4.03, DLJMB shall give
notice thereof to all Stockholders, shall remit to each of the Stockholders who
have surrendered their certificates the total consideration (by bank or
certified check) for the Subject Securities transferred pursuant hereto and
shall furnish such other evidence of the completion and time of completion of
such transfer and the terms thereof as may be reasonably requested by such
Stockholders.
Section 4.3. Certain Rights. It is understood and agreed that
the employment agreements or associated restricted stock purchase agreements
between one or more Management Stockholders and the Company or any Subsidiary
may contain provisions permitting or requiring, under certain circumstances,
such Management Stockholders to sell to the Company or a Subsidiary, and
permitting or requiring, under certain circumstances, the Company or such
Subsidiary to purchase from such Management Stockholder, Company Securities.
Such provisions may, by the terms of such agreements, remain effective
notwithstanding that the employment relationship created by such employment
agreements has been terminated, in which event such provisions are deemed to
be incorporated herein and made a part hereof, to the extent appropriate.
ARTICLE 5
Registration Rights
Section 5.1. Demand Registration. (a) If the Company shall
receive a written request by the DLJ Entities or their Permitted Transferees
(any such requesting Person, a "Selling Stockholder") that the Company effect
the registration under the Securities Act of all or a portion of such Selling
Stockholder's Registrable Securities, and specifying the intended method of
disposition thereof, then the Company shall promptly give written notice of
such requested registration (a "Demand Registration") at least 5 days prior to
the anticipated filing date of the registration statement relating to such
Demand Registration to the Other Stockholders and thereupon will use its best
efforts to effect, as expeditiously as possible, the registration under the
Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Selling Stockholders, then held by the
Selling Stockholders; and
(ii) subject to the restrictions set forth in Section 3.04,
all other Registrable Securities of the same type as that to which the
request by the Selling Stockholders relates which any Other
Stockholder entitled to request the Company to effect an Incidental
Registration (as such term is defined in Section 5.02) pursuant to
Section 5.02 (all such Stockholders, together with the Selling
Stockholders, the "Holders") has requested the Company to register by
written request received by the Company within 2 days after the
receipt by such Holders of such written notice given by the Company,
all to the extent necessary to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so
to be registered; provided that, subject to Section 5.1(d) hereof, the
Company shall not be obligated to effect more than six Demand Registrations
for the DLJ Entities; and provided further that the Company shall not be
obligated to effect a Demand Registration unless the aggregate proceeds
expected to be received from the sale of the Common Stock to be included in
such Demand Registration, in the reasonable opinion of DLJMB exercised in
good faith, equals or exceeds (x) $50,000,000 if such Demand Registration
would constitute the First Public Offering, or (y) $10,000,000 in all other
cases. In no event will the Company be required to effect more than one
Demand Registration within any four-month period.
(b) Promptly after the expiration of the 2-day period referred to
in Section 5.1(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Selling
Stockholders requesting a registration under this Section may, at any time
prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Holders, by providing a written notice to the Company revoking such request,
in which case such request, so revoked, shall be considered a Demand
Registration unless the participating Stockholders reimburse the Company for
all costs incurred by the Company in connection with such registration, or
unless such revocation arose out of the fault of the Company, in which case
such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection
with any Demand Registration.
(d) A registration requested pursuant to this Section shall not be
deemed to have been effected (i) unless the registration statement relating
thereto (A) has become effective under the Securities Act and (B) has remained
effective for a period of at least 180 days (or such shorter period in which
all Registrable Securities of the Holders included in such registration have
actually been sold thereunder); provided that if after any registration
statement requested pursuant to this Section becomes effective (x) such
registration statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental agency or court
and (y) less than 75% of the Registrable Securities included in such
registration statement has been sold thereunder, such registration statement
shall not be considered a Demand Registration or (ii) if the Maximum Offering
Size (as defined below) is reduced in accordance with Section 5.1(e) such that
less than 66 2/3% of the Registrable Securities of the Selling Stockholders
sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public
Offering and the managing underwriter shall advise the Company and the Selling
Stockholders that, in its view, (i) the number of Registrable Securities
requested to be included in such registration (including any securities which
the Company proposes to be included which are not Registrable Securities) or
(ii) the inclusion of some or all of the Registrable Securities owned by the
Holders, in any such case, exceeds the largest number of securities which can
be sold without having an adverse effect on such offering, including the price
at which such securities can be sold (the "Maximum Offering Size"), the
Company will include in such registration, in the priority listed below, up to
the Maximum Offering Size:
(A) first, all Benchmark Securities requested to be
registered by the Selling Stockholder and by all other DLJ
Entities and their Permitted Transferees (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro
rata among such entities on the basis of the relative number of
shares of Registrable Securities requested to be registered);
(B) second, all Registrable Securities (other than
Benchmark Securities) requested to be included in such
registration by all DLJ Entities and their Permitted Transferees
and any other Holder (allocated, if necessary for the offering
not to exceed the Maximum Offering Size, pro rata among such DLJ
Entities and their Permitted Transferees and such other Holders
on the basis of the relative number of shares of Registrable
Securities (excluding any Benchmark Securities) requested to be
included in such registration); and
(C) third, any securities proposed to be registered by
the Company.
(f) If, in connection with any Demand Registration pursuant to
this Section with respect to the Preferred Stock, any Selling Stockholder
shall seek to transfer any Warrants together with shares of Preferred Stock,
the Company shall at the request of any such Stockholder effect a registration
of such Warrants to which the provisions of this Article 5 shall apply mutatis
mutandis and a registration, pursuant to a shelf registration statement, so as
to permit the resale of the shares of Common Stock for which any Warrants so
transferred may be exercisable. The Company shall maintain the effectiveness
of any such shelf registration statement, and take all actions necessary to
permit resale of such Common Stock as may be required by applicable state
securities laws.
Section 5.2. Incidental Registration. (a) If the Company
proposes to register any Company Securities under the Securities Act (other
than a registration (A) on Form S-8 or S-4 or any successor or similar forms,
(B) relating to Common Stock issuable upon exercise of employee stock options
or in connection with any employee benefit or similar plan of the Company or
(C) in connection with a direct or indirect acquisition by the Company of
another company), whether or not for sale for its own account, it will each
such time, subject to the provisions of Section 5.2(b), give prompt written
notice at least 30 days prior to the anticipated filing date of the
registration statement relating to such registration to each DLJ Entity and
each Other Stockholder, which notice shall set forth such Stockholder's rights
under this Section 5.2 and shall offer such Stockholders the opportunity to
include in such registration statement such number of Registrable Securities
of the same type as are proposed to be registered as each such Stockholder may
request (an "Incidental Registration"). Upon the written request of any such
Stockholder made within 15 days after the receipt of notice from the Company
(which request shall specify the number of Registrable Securities intended to
be disposed of by such Stockholder), the Company will use its best efforts to
effect the registration under the Securities Act of all Registrable Securities
which the Company has been so requested to register by such Stockholders, to
the extent requisite to permit the disposition of the Registrable Securities
so to be registered; provided that (I) if such registration involves a Public
Offering, all such Stockholders requesting to be included in the Company's
registration must sell their Registrable Securities to the underwriters
selected as provided in Section 5.4(f) on the same terms and conditions as
apply to the Company and (II) if, at any time after giving written notice of
its intention to register any stock pursuant to this Section 5.2(a) and prior
to the effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to register
such securities, the Company shall give written notice to all such
Stockholders and, thereupon, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (without
prejudice, however, to rights of any DLJ Entity under Section 5.1). No
registration effected under this Section 5.2 shall relieve the Company of its
obligations to effect a Demand Registration to the extent required by Section
5.1. The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 5.2.
(b) If a registration pursuant to this Section 5.2 involves a
Public Offering (other than in the case of a Public Offering requested by any
DLJ Entity or any of their Permitted Transferees or the Other Stockholders in a
Demand Registration, in which case the provisions with respect to priority of
inclusion in such offering set forth in Section 5.01(e) shall apply) and the
managing underwriter advises the Company that, in its view, the number of
Shares that the Company and such Stockholders intend to include in such
registration exceeds the Maximum Offering Size, the Company will include in
such registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the securities proposed to be
registered by the Company as would not cause the offering to exceed
the Maximum Offering Size;
(ii) second, all Benchmark Securities requested to be
included in such registration statement by the DLJ Entities and their
Permitted Transferees (allocated, if necessary for the offering not to
exceed the Maximum Offering Size, pro rata among such entities on the
basis of the relative number of shares of Registrable Securities
requested to be so included); and
(iii) third, all Registrable Securities other than Benchmark
Securities requested to be included in such registration by any DLJ
Entity and its Permitted Transferees or any Other Stockholder pursuant
to this Section 5.2 (allocated, if necessary for the offering not to
exceed the Maximum Offering Size, pro rata among such Stockholders on
the basis of the relative number of shares of Registrable Securities
(excluding any Benchmark Securities) so requested to be included in
such registration).
Section 5.3. Holdback Agreements. If any registration of
Registrable Securities shall be in connection with a Public Offering, each DLJ
Entity and its Permitted Transferees and each Other Stockholder agrees not to
effect any public sale or distribution, including any sale pursuant to Rule
144, or any successor provision, under the Securities Act, of any Registrable
Securities, and not to effect any such public sale or distribution of any
other Common Stock of the Company or of any stock convertible into or
exchangeable or exercisable for any Common Stock of the Company (in each case,
other than as part of such Public Offering) during the 14 days prior to the
effective date of such registration statement (except as part of such
registration) or during the period after such effective date equal to the
lesser of (i) such period of time as agreed between such managing underwriter
and the Company and (ii) 180 days (such lesser period, the "Applicable
Holdback Period").
Section 5.4. Registration Procedures. Whenever Stockholders
request that any Registrable Securities be registered pursuant to Section 5.1
or 5.2, the Company will, subject to the provisions of such Sections, use its
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof as
quickly as practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement to
become and remain effective for a period of not less than 180 days.
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
participating Stockholder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company will furnish to
such Stockholder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Stockholder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Stockholder.
(c) After the filing of the registration statement, the Company
will promptly notify each Stockholder holding Registrable Securities covered by
such registration statement of any stop order issued or threatened by the SEC
and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or
qualify the Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions in the
United States as any Stockholder holding such Registrable Securities
reasonably (in light of such Stockholder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be reasonably necessary or advisable to
enable such Stockholder to consummate the disposition of the Registrable
Securities owned by such Stockholder; provided that the Company will not be
required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (d), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(e) The Company will immediately notify each Stockholder holding
such Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an
event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
promptly prepare and make available to each such Stockholder any such
supplement or amendment.
(f) (i) The DLJ Entities will have the right, in their sole
discretion, to select an underwriter or underwriters in connection with any
Public Offering resulting from the exercise by any such DLJ Entity or its
Permitted Transferee of a Demand Registration, which underwriter or
underwriters may include any Affiliate of any DLJ Entity and (ii) the Company
will select an underwriter or underwriters in connection with any other Public
Offering. In connection with any Public Offering, the Company will enter into
customary agreements (including an underwriting agreement in customary form)
and take such other actions as are reasonably required in order to expedite or
facilitate the disposition of Registrable Securities in any such Public
Offering, including the engagement of a "qualified independent underwriter" in
connection with the qualification of the underwriting arrangements with the
NASD.
(g) Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company, the Company will make available for
inspection by any Stockholder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 5.4 and any attorney, accountant or other professional
retained by any such Stockholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any Inspectors in connection
with such registration statement. Records that the Company determines, in
good faith, to be confidential and that it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement or
omission in such registration statement or (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Stockholder agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the Company Securities or
its Affiliates unless and until such is made generally available to the
public. Each Stockholder further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each such Stockholder and to each
such underwriter, if any, a signed counterpart, addressed to such underwriter,
of (i) an opinion or opinions of counsel to the Company and (ii) a comfort
letter or comfort letters from the Company's independent public accountants,
each in customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as a majority of
such Stockholders or the managing underwriter therefor reasonably requests.
(i) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective date
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
The Company may require each such Stockholder to promptly
furnish in writing to the Company such information regarding the distribution
of the Registrable Securities as the Company may from time to time reasonably
request and such other information as may be legally required in connection
with such registration.
Each such Stockholder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
5.4(e), such Stockholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Stockholder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5.4(e), and, if so directed by
the Company, such Stockholder will deliver to the Company all copies, other
than any permanent file copies then in such Stockholder's possession, of the
most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event that the Company shall give such notice,
the Company shall extend the period during which such registration statement
shall be maintained effective (including the period referred to in Section
5.4(a)) by the number of days during the period from and including the date of
the giving of notice pursuant to Section 5.4(e) to the date when the Company
shall make available to such Stockholder a prospectus supplemented or amended
to conform with the requirements of Section 5.4(e).
Section 5.5. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Stockholder holding Registrable
Securities covered by a registration statement, its officers, directors and
agents, and each person, if any, who controls such Stockholder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained
in any registration statement or prospectus relating to the Registrable
Securities (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by such
Stockholder or on such Stockholder's behalf expressly for use therein;
provided that with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, or in any
prospectus, as the case may be, the indemnity agreement contained in this
paragraph shall not apply to the extent that any such loss, claim, damage,
liability or expense results from the fact that a current copy of the
prospectus (or, in the case of a prospectus, the prospectus as amended or
supplemented) was not sent or given to the person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation of
the sale of the Registrable Securities concerned to such person if it is
determined that the Company has provided such prospectus and it was the
responsibility of such Stockholder to provide such person with a current copy
of the prospectus (or such amended or supplemented prospectus, as the case may
be) and such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect giving rise to
such loss, claim, damage, liability or expense. The Company also agrees to
indemnify any underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Stockholders provided in this
Section 5.5.
Section 5.6. Indemnification by Participating Stockholders.
Each Stockholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless the
Company, its officers, directors and agents and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Stockholder, but only (i) with respect to
information furnished in writing by such Stockholder or on such Stockholder's
behalf expressly for use in any registration statement or prospectus relating
to the Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus or (ii) to the extent that any loss, claim, damage,
liability or expense described in Section 5.5 results from the fact that a
current copy of the prospectus (or, in the case of a prospectus, the
prospectus as amended or supplemented) was not sent or given to the person
asserting any such loss, claim, damage, liability or expense at or prior to
the written confirmation of the sale of the Registrable Securities concerned
to such person if it is determined that it was the responsibility of such
Stockholder to provide such person with a current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) and such current
copy of the prospectus (or such amended or supplemented prospectus, as the
case may be) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. Each such Stockholder also agrees to indemnify
and hold harmless underwriters of the Registrable Securities, their officers
and directors and each person who controls such underwriters on substantially
the same basis as that of the indemnification of the Company provided in this
Section 5.6. As a condition to including Registrable Securities in any
registration statement filed in accordance with Article 5 hereof, the Company
may require that it shall have received an undertaking reasonably satisfactory
to it from any underwriter to indemnify and hold it harmless to the extent
customarily provided by underwriters with respect to similar securities.
Section 5.7. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
this Article 5, such person (an "Indemnified Party") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying
Party") in writing and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Party, and shall assume the payment of all fees and expenses;
provided that the failure of any Indemnified Party so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of its obligations
hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure to notify. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i)
the Indemnifying Party and the Indemnified Party shall have mutually agreed to
the retention of such counsel or (ii) in the reasonable judgment of such
Indemnified Party representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by the Indemnified Parties. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent, or if there be
a final judgment for the plaintiff, the Indemnifying Party shall indemnify and
hold harmless such Indemnified Parties from and against any loss or liability
(to the extent stated above) by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability arising out of such proceeding.
Section 5.8. Contribution. If the indemnification provided
for in this Article 5 is unavailable to the Indemnified Parties in respect of
any losses, claims, damages or liabilities referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) as between the Company and
the Stockholders holding Registrable Securities covered by a registration
statement on the one hand and the underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and such Stockholders on the one hand and the underwriters on the
other, from the offering of the Registrable Securities, or if such allocation
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits but also the relative fault of the
Company and such Stockholders on the one hand and of such underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations and (ii) as between the Company on the one hand and
each such Stockholder on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each such Stockholder in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
such Stockholders on the one hand and such underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and such Stockholders bear to the total underwriting
discounts and commissions received by such underwriters, in each case as set
forth in the table on the cover page of the prospectus. The relative fault of
the Company and such Stockholders on the one hand and of such underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and such Stockholders or by such underwriters. The relative fault
of the Company on the one hand and of each such Stockholder on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be
just and equitable if contribution pursuant to this Section 5.8 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 the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 5.8, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public were offered to the public 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, and no Stockholder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Stockholder were offered to the public exceeds the amount
of any damages which such Stockholder 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 misrepresentation (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. Each such Stockholder's obligation to contribute pursuant
to this Section 5.8 is several in the proportion that the proceeds of the
offering received by such Stockholder bears to the total proceeds of the
offering received by all such Stockholders and not joint.
Section 5.9. Participation in Public Offering. No Person may
participate in any Public Offering hereunder unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements an (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions
of this Agreement in respect of registration rights.
Section 5.10. Other Indemnification. Indemnification similar
to that specified herein (with appropriate modifications) shall be given by the
Company and each Stockholder participating therein with respect to any
required registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities
Act.
Section 5.11. Cooperation by the Company. In the event any
Stockholder shall transfer any Registrable Securities pursuant to Rule 144A
under the Securities Act, the Company shall cooperate with such Stockholder
(which shall include, without limitation, making registration rights with
respect to the Registrable Securities to be sold (or securities issuable or to
be issued in exchange therefor) available to the ultimate purchasers thereof)
and shall provide to such Stockholder such information as such Stockholder
shall reasonably request.
ARTICLE 6
Miscellaneous
Section 6.1. Entire Agreement. This Agreement and the
Securities Purchase Agreement constitute the entire agreement among the
parties hereto and supersede all prior agreements and understandings, oral and
written, among the parties hereto with respect to the subject matter hereof.
Section 6.2. Binding Effect; Benefit. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, shall confer on any Person
other than the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 6.3. Exclusive Financial and Investment Banking
Advisor. During the period from and including the date hereof through and
including the fifth anniversary of the date hereof, Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), or any Affiliate of DLJSC that the
DLJ Entities may choose in their sole discretion, shall be engaged as the
exclusive financial and investment banking advisor of the Company. DLJSC or
such Affiliate shall be entitled to reimbursement from the Company for all
expenses incurred by DLJSC or such Affiliate (including, without limitation,
fees and expenses of counsel) as financial and investment banking advisor of
the Company.
Section 6.4. Assignability. This Agreement shall not be
assignable by any party hereto, except that any Person acquiring Shares who is
required by the terms of this Agreement or any employment agreement or stock
purchase, option, stock option or other compensation plan of the Company or
any Subsidiary to become a party hereto shall (unless already bound hereby)
execute and deliver to the Company an agreement to be bound by this Agreement
and shall thenceforth be a "Stockholder". Any Stockholder who ceases to own
beneficially any Shares shall cease to be bound by the terms hereof (other
than the provisions of Sections 5.5, 5.6, 5.7, 5.8, and 5.10 applicable to
such Stockholder with respect to any offering of Registrable Securities
completed before the date such Stockholder ceased to own any Shares).
Section 6.5. Amendment; Waiver; Termination. No provision of
this Agreement may be waived except by an instrument in writing executed by the
party against whom the waiver is to be effective. No provision of this
Agreement may be amended or otherwise modified except by an instrument in
writing executed by the Company with the approval of the Board and
Stockholders holding at least 75% of the outstanding Shares; provided that any
amendment or other modification of this Agreement that would adversely affect
any Founding Stockholder may be effected only with the consent of such
Stockholder.
Section 6.6. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmissions and shall be given,
if to the Company or the Management Stockholders, to:
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
(314) 721-5573
Attention: James H. Tate
Stephanie N. Josephson
Fax: (314) 746-2374
with a copy to:
Weil, Gotshal & Manges
100 Crescent Court, Suite 1300
Dallas, Texas 75201
Attention: R. Scott Cohen
Fax: (214) 746-7777
and a copy to the DLJ Entities at their addresses listed below.
if to the DLJ Entities, to:
DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, New York 10172
Attention: Peter T. Grauer
Fax: (212) 892-7552
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: George R. Bason, Jr.
Fax: (212) 450-4800
All notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place
of receipt. Any notice, request or other written communication sent by
facsimile transmission shall be confirmed by certified mail, return receipt
requested, posted within one Business Day, or by personal delivery, whether
courier or otherwise, made within two Business Days after the date of such
facsimile transmission.
Any Person who becomes a Stockholder shall provide its address
and fax number to the Company, which shall promptly provide such information to
each other Stockholder.
Section 6.7. Headings. The headings contained in this
Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
Section 6.8. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument.
Section 6.9. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
Section 6.10. Specific Enforcement. Each party hereto
acknowledges that the remedies at law of the other parties for a breach or
threatened breach of this Agreement would be inadequate and, in recognition of
this fact, any party to this Agreement, without posting any bond, and in
addition to all other remedies which may be available, shall be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
Section 6.11. Consent to Jurisdiction. Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby may be brought in the United States District Court for the Southern
District of New York or any other New York State court sitting in New York
City, and each of the parties hereby consents to the non-exclusive
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 6.6 shall be deemed effective
service of process on such party.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
THERMADYNE HOLDINGS CORPORATION
By:
----------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.
Managing General Partner
By:
----------------------------
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By:
----------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II,
INC., Advisory General Partner
By:
----------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS,
INC., Managing General Partner
By:
----------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By:
----------------------------
Name:
Title:
DLJMB FUNDING II, INC.
By:
----------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By:
----------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By:
----------------------------
Name:
Title:
UK INVESTMENT PLAN 1997
PARTNERS
DONALDSON, LUFKIN & JENRETTE,
INC., General Partner
By:
----------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By:
----------------------------
Name:
Title:
DLJ ESC II, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By:
----------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By:
----------------------------
Name:
Title:
---------------------------
Randall E. Curran
---------------------------
James H. Tate
---------------------------
Michael E. Mahoney
---------------------------
John D. McCulloch
---------------------------
Michael C. O'Connell
---------------------------
James R. Delany
---------------------------
Hoyt H. Fitzsimmons, Jr.
---------------------------
Dennis Klanjscek
---------------------------
Robert D. Maddox
---------------------------
Thomas C. Drury
---------------------------
Stephanie N. Josephson
EXHIBIT 7
AMENDMENT NO. 1
to
AGREEMENT AND PLAN OF MERGER
between
THERMADYNE HOLDINGS CORPORATION
and
MERCURY ACQUISITION CORPORATION
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of April 22, 1998, by and between Thermadyne Holdings
Corporation, a Delaware corporation (the "Company"), and Mercury Acquisition
Corporation, a Delaware corporation ("MergerSub").
WITNESSETH:
WHEREAS, MergerSub and the Company are parties to an Agreement
and Plan of Merger dated as of January 20, 1998 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein and in the Agreement, the parties hereto agree as
follows:
1. Section 1.07(a) is hereby amended by deleting the opening
clause "Except as set forth on Schedule 1.07(a)," so that Section 1.07(a) now
commences with the word "Immediately."
2. Schedule 1.07(a) is hereby deleted in its entirety.
3. Section 1.07(b) is renumbered 1.07(c) and the reference
therein to Section 1.07(a) is hereby amended to refer to Sections 1.07(a) and
1.07(b), and a new Section 1.07(b) is hereby inserted as follows:
(b) At the Effective Time, each outstanding right to purchase
Shares with previously held funds under the Employee Stock
Purchase Plan (the "ESPP") shall be canceled. In lieu
thereof, as soon as reasonably practicable as of or after
the Effective Time, the holders of such purchase rights
shall receive a cash payment from the Company equal to the
product of (i) the total number of Shares of Company Common
Stock subject to such purchase rights immediately prior to
the Effective Time and (ii) $34.50. All funds previously
withheld under the ESPP will become assets of the Company.
4. Section 5.08 is hereby amended to read as follows:
"[intentionally omitted]."
5. Section 8.02(f) of the Agreement is hereby deleted in its
entirety, and Section 8.02(g) is renumbered 8.02(f).
6. Exhibit A of the Agreement is hereby amended to read in its
entirety as follows:
"SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF THE
SURVIVING CORPORATION
*****
As of the Effective Time, the Certificate of Incorporation of
the Surviving Corporation, as amended and restated hereby, shall, upon its
filing with the Secretary of State of the State of Delaware, read in its
entirety as follows:
FIRST: The name of the Corporation is Thermadyne Holdings
Corporation.
SECOND: The address of its registered office in the State of
Delaware is 1013 Centre Road, Wilmington, Delaware 19805. The name of its
registered agent at such address is Corporation Service Company.
THIRD: The purpose of the Corporation and the nature and
objects of the business to be transacted, promoted, and carried on are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, as the same exists
or may hereafter be amended (the "Delaware Law").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 45,000,000, consisting of
30,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock"), and 15,000,000 shares of Preferred Stock, par value $0.01 per share
(the "Preferred Stock"), of which 2,000,000 shares have been designated 13%
Senior Exchangeable Preferred Stock (the "Senior Preferred Stock").
The designations and the powers and preferences, rights,
qualifications, limitations and restrictions of the Common Stock and the
Preferred Stock are as follows:
A. Provisions Relating to the Common Stock
Except as otherwise required by law, each holder of Common
Stock shall be entitled to one vote for each share of common stock standing in
such holder's name on the records of the Corporation on each matter submitted
to a vote of the stockholders.
The holders of the Common Stock shall be entitled to receive
when, as, and if declared by the board of directors of the Corporation, out of
funds legally available therefor, dividends payable in cash, stock, or
otherwise.
Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of any
bonds, debentures, or other obligations of the Corporation shall have been
paid in full the amounts to which they shall be entitled (if any), or a sum
sufficient for such payment in full shall have been set aside, the remaining
net assets of the Corporation shall be distributed pro rata to the holders of
the Common Stock in accordance with their respective rights and interests, to
the exclusion of the holders of any bonds, debentures, or other obligations of
the Corporation.
The Corporation may issue shares of its Common Stock from time
to time for such consideration (in any form, but not less in value than the
par value thereof) as may be fixed by the board of directors of the
Corporation, which is expressly authorized to fix the same in its absolute and
uncontrolled discretion subject to the foregoing conditions. Shares so issued
for which the consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon, and the holders of such shares shall not
be liable for any further payments in respect of such shares. The Corporation
shall also have authority to create and issue rights and options entitling
their holders to purchase or otherwise acquire shares of Common Stock and such
rights and options shall be evidenced by instrument(s) approved by the board
of directors of the Corporation. The board of directors of the Corporation
shall be empowered to set the exercise price, duration, times for exercise,
and other terms of such options or rights; provided, however, that the
consideration to be received (which may be in any form) for any shares of
Common Stock subject thereto shall have a value not less than the par value
thereof.
B. Provisions Relating to the Preferred Stock
The Board of Directors is hereby empowered to authorize by
resolution or resolutions from time to time the issuance of one or more
classes or series of Preferred Stock and to fix the designations, powers,
preferences and relative, participating, optional or other rights, if any, and
the qualifications, limitations or restrictions thereof, if any, with respect
to each such class or series of Preferred Stock and the number of shares
constituting each such class or series, and to increase or decrease the number
of shares of any such class or series to the extent permitted by the Delaware
Law.
C. Provisions Relating to the Senior Preferred Stock
(1) Number and Designation. 2,000,000 shares of the Preferred
Stock of the Corporation shall be designated as 13% Senior Exchangeable
Preferred Stock.
(2) Rank. The Senior Preferred Stock shall, with respect to
dividend rights and rights on liquidation, dissolution and winding up, rank
prior to all classes of or series of common stock of the Corporation,
including the Corporation's Common Stock, and each other class of capital
stock of the Corporation, the terms of which provide that such class shall
rank junior to the Senior Preferred Stock or the terms of which do not specify
any rank relative to the Senior Preferred Stock. All equity securities of the
Corporation to which the Senior Preferred Stock ranks prior (whether with
respect to dividends or upon liquidation, dissolution, winding up or
otherwise), including the Common Stock, are collectively referred to herein as
the "Junior Securities." All equity securities of the Corporation with which
the Senior Preferred Stock ranks on a parity (whether with respect to
dividends or upon liquidation, dissolution or winding up) are collectively
referred to herein as the "Parity Securities." The respective definitions
of Junior Securities and Parity Securities shall also include any rights or
options exercisable for or convertible into any of the Junior Securities
and Parity Securities, as the case may be. The Senior Preferred Stock
shall be subject to the creation of Junior Securities.
(3) Dividends. (a) (i) The holders of shares of Senior
Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors, out of funds legally available for the payment of
dividends, dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a
rate equal to ______ [the greater of (x) 13% per annum (computed on the
basis of a 360 day year) or (y) the stated rate of interest per annum
payable on the Senior Subordinated Notes due 2008 of Thermadyne Mfg. LLC
plus 300 basis points] (the "Dividend Rate") on the Liquidation Value of
each share of Senior Preferred Stock on and as of the most recent Dividend
Payment Date (as defined below). In the event the Corporation is unable or
shall fail to discharge its obligation to redeem all outstanding shares of
Senior Preferred Stock pursuant to paragraph 5(c) or 5(d) hereof, the
Dividend Rate shall increase by .25 percent per quarter (each, a "Default
Dividend") for each quarter or portion thereof following the date on which
such redemption was required to be made until cured, provided that the
aggregate increase shall not exceed 5%. Such dividends shall be payable in
the manner set forth below in Sections 3(a)(ii) and (iii) quarterly on
March 31, June 30, September 30, and December 31 of each year (unless such
day is not a business day, in which event on the next succeeding business
day) (each of such dates being a "Dividend Payment Date" and each such
quarterly period being a "Dividend Period"). Such dividends shall be
cumulative from the date of issue, whether or not in any Dividend Period or
Periods there shall be funds of the Corporation legally available for the
payment of such dividends.
(ii) Prior to the fifth anniversary of the issuance of the
Senior Preferred Stock (the "Cash Pay Date"), dividends
shall not be payable in cash to holders of shares of Senior
Preferred Stock but shall, subject to Section 3(b) hereof,
accrete to the Liquidation Value in accordance with Section
4(a) hereof.
(iii) Following the Cash Pay Date, each such dividend shall
be payable in cash on the Liquidation Value per share of the
Senior Preferred Stock, in equal quarterly amounts (to which
the Default Dividend, if any, shall be added), to the
holders of record of shares of the Senior Preferred Stock,
as they appear on the stock records of the Corporation at
the close of business on such record dates, not more than 60
days or less than 10 days preceding the payment dates
thereof, as shall be fixed by the Board of Directors.
Accrued and unpaid dividends for any past Dividend Periods
may be declared and paid at any time, without reference to
any Dividend Payment Date, to holders of record on such
date, not more than 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors.
(b) At the written request of the holders of a majority of the
shares of Senior Preferred Stock, the Corporation shall, commencing on the
first Dividend Payment Date after such request and ending on the Cash Pay
Date, be required to pay all dividends on shares of Senior Preferred Stock by
the issuance of additional shares of Senior Preferred Stock ("Additional
Shares"). The Additional Shares shall be identical to all other shares of
Senior Preferred Stock, except as set forth in Section 4. For the purposes of
determining the number of Additional Shares to be issued as dividends pursuant
to this Paragraph (b), such Additional Shares shall be valued at their
Applicable Liquidation Value as provided in Section 4(c).
(c) Holders of shares of Senior Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in
excess of the cumulative dividends, as herein provided, on the Senior
Preferred Stock. Except as provided in this Section 3, no interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Senior Preferred Stock that may be in arrears.
(d) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends, except as described in the next succeeding
sentence, shall be declared or paid or set apart for payment on Parity
Securities, for any period unless (to the extent such dividends are payable in
cash) full cumulative dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart
for such payment on the Senior Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of the dividend on such class
or series of Parity Securities. When (to the extent such dividends are payable
in cash) dividends are not paid in full or a sum sufficient for such payment is
not set apart, as aforesaid, all dividends declared upon shares of the Senior
Preferred Stock and all dividends declared upon any other class or series of
Parity Securities shall (in each case, to the extent payable in cash) be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Senior Preferred Stock and accumulated and
unpaid on such Parity Securities.
(e) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Junior Securities) shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Securities, nor shall any
Junior Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary) (all such dividends, distributions, redemptions or purchases being
hereinafter referred to as a "Junior Securities Distribution") for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation,
directly or indirectly (except by conversion into or exchange for Junior
Securities), unless in each case (i) the full cumulative dividends on all
outstanding shares of the Senior Preferred Stock and any other Parity
Securities shall (to the extent payable in cash) have been paid or set apart
for payment for all past Dividend Periods with respect to the Senior Preferred
Stock and all past dividend periods with respect to such Parity Securities and
(ii) (to the extent payable in cash) sufficient funds shall have been paid or
set apart for the payment of the dividend for the current Dividend Period with
respect to the Senior Preferred Stock and the current dividend period with
respect to such Parity Securities.
(4) Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for the
holders of Junior Securities, the holders of the shares of Senior Preferred
Stock shall be entitled to receive an amount equal to the Liquidation Value of
such share plus any accrued and unpaid cash dividends to the date of
distribution. "Liquidation Value" on any date means, with respect to (x) any
share of Senior Preferred Stock other than any Additional Shares, the sum of
(1) $25.00 per share and (2) the aggregate of all dividends accreted on such
share until the most recent Dividend Payment Date upon which an accretion to
Liquidation Value has occurred (or if such date is a Dividend Payment Date
upon which an accretion to Liquidation Value has occurred, such date),
provided that in the event of an actual liquidation, dissolution or winding up
of the Corporation or the redemption of any shares of Senior Preferred Stock
pursuant to Section 5 hereunder, the amount referred to in (2) shall be
calculated by including dividends accreting to the actual date of such
liquidation, dissolution or winding up or the redemption date, as the case may
be, rather than the Dividend Payment Date referred to above and provided
further that in no event will dividends accrete beyond the earlier of (i) the
Cash Pay Date and (ii) the most recent Dividend Payment Date prior to the
Dividend Payment Date on which dividends on the Senior Preferred Stock are
payable in Additional Shares and (y) any Additional Share, the Applicable
Liquidation Value. All accretions to Liquidation Value will be calculated
using compounding on a quarterly basis. Except as provided in the preceding
sentences, holders of shares of Senior Preferred Stock shall not be entitled
to any distribution in the event of liquidation, dissolution or winding up of
the affairs of the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the shares of Senior Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid
and liquidating payments on any Parity Securities, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of Senior
Preferred Stock and any such other Parity Securities ratably in accordance
with the respective amounts that would be payable on such shares of Senior
Preferred Stock and any such other stock if all amounts payable thereon were
paid in full. For the purposes of this Section 4, (i) a consolidation or
merger of the Corporation with one or more corporations, or (ii) a sale or
transfer of all or substantially all of the Corporation's assets, shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of any Parity
Securities, after payment shall have been made in full to the holders of the
Senior Preferred Stock, as provided in this paragraph (4), any other series or
class or classes of Junior Securities shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Senior
Preferred Stock shall not be entitled to share therein.
(c) The Applicable Liquidation Value of any Additional Shares
shall be the Liquidation Value of Senior Preferred Stock outstanding
immediately prior to the first Dividend Payment Date occurring after a request
for payment in Additional Shares has been made in accordance with Section 3(b).
(5) Redemption. (a) Redemption Upon Consummation of Public
Offering. The Corporation may, at its option, to the extent it shall have
funds legally available for such payment, redeem, prior to May 15, 2001, in
whole but not in part, shares of Senior Preferred Stock, at a redemption price
per share equal to 113% of the Liquidation Value, in cash, plus accrued and
unpaid cash dividends on such shares to the date fixed for redemption, without
interest, provided that the Corporation shall not redeem any shares of Senior
Preferred Stock pursuant to this Section 5(a) unless (i) prior to such
redemption a Public Offering shall have been consummated, and (ii) the
aggregate redemption price of the shares of Senior Preferred Stock redeemed
pursuant to this Section 5(a) does not exceed the net proceeds received by the
Corporation in such Initial Public Offering.
"Public Offering" shall mean any underwritten public offering
of Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended, and shall, in addition, for the purposes
of Section 5(a) hereof, include any sale, pursuant to such an underwritten
registered public offering, following the Closing Date of any common stock by
any affiliate of the Corporation, the net proceeds of which are contributed or
loaned to the Corporation in such a manner that such proceeds may lawfully be
used for the redemption of the Senior Preferred Stock.
"Closing Date" shall have the meaning ascribed to such term in
the Investors' Agreement.
"Investors' Agreement" means the Investors' Agreement dated May
__, 1998, among Thermadyne Holdings Corporation, DLJ Merchant Banking Partners
II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners,
C.V., DLJ Merchant Banking Funding, Inc., DLJ Offshore Partners II, C.V., DLJ
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ EAB
Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ ESC
II, L.P. (collectively, the "DLJMB Funds"), and certain other stockholders
listed on the signature pages thereof.
(b) Redemption At the Option of the Corporation. On and after
May 15, 2003, to the extent the Corporation shall have funds legally available
for such payment, the Corporation may, at its option, redeem shares of Senior
Preferred Stock, at any time in whole but not in part, at redemption prices
per share in cash set forth in the table below, together with accrued and
unpaid cash dividends thereon to the date fixed for redemption, without
interest:
Twelve Months Beginning
May 15, Percentage of Liquidation Value
----------------------- -------------------------------
2003 106.500%
2004 104.333
2005 102.167
2006 100.000
(c) Redemption In the Event of a Change of Control. In the event of a
Change of Control, the Corporation shall, to the extent it shall have funds
legally available for such payment, offer to redeem all of the shares of
Senior Preferred Stock then outstanding, and shall redeem the shares of Senior
Preferred Stock of any holder of such shares that shall consent to such
redemption, upon a date no later than 30 days following the Change in Control,
at a redemption price per share equal to 101% of the Liquidation Value, in
cash, plus accrued and unpaid cash dividends thereon to the date fixed for
redemption, without interest.
"Change of Control" means such time as: (a) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), other than any person or group comprised
solely of the Initial Investors, has become the beneficial owner, by way of
merger, consolidation or otherwise, of 30% or more of the voting power of all
classes of voting securities of the Corporation, and such person or group has
become the beneficial owner of a greater percentage of the voting power of all
classes of voting securities of the Corporation than that beneficially owned
by the Initial Investors; or (b) a sale or transfer of all or substantially
all of the assets of the Corporation to any person or group (other than any
group consisting solely of the Initial Investors or their affiliates) has been
consummated; or (c) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors of the
Corporation (together with any new directors whose election was approved by a
vote of a majority of the directors then still in office, who either were
directors at the beginning of such period or whose election or nomination for
the election was previously so approved) cease for any reason to constitute a
majority of the directors of the Corporation, then in office.
"Initial Investors" means the Stockholders (determined as of
the issuance of the Preferred Stock) and their Permitted Transferees, each as
defined in the Investors' Agreement.
(d) Mandatory Redemption. To the extent the Corporation shall
have funds legally available for such payment, on May 15, 2010, if any shares
of the Senior Preferred Stock shall be outstanding, the Corporation shall
redeem all outstanding shares of the Senior Preferred Stock, at a redemption
price equal to the aggregate Liquidation Value, in cash, together with any
accrued and unpaid cash dividends thereon to the date fixed for
redemption, without interest.
(e) Status of Redeemed Shares. Shares of Senior Preferred Stock
which have been issued and reacquired in any manner, including shares
purchased or redeemed, shall (upon compliance with any applicable provisions
of the laws of the State of Delaware) have the status of authorized and
unissued shares of the class of Preferred Stock undesignated as to series and
may be redesignated and reissued as part of any series of the Preferred Stock;
provided that no such issued and reacquired shares of Senior Preferred Stock
shall be reissued or sold as Senior Preferred Stock.
(f) Failure to Redeem. If the Corporation is unable or shall
fail to discharge its obligation to redeem all outstanding shares of Senior
Preferred Stock pursuant to paragraph (5)(c) or 5(d) (each, a "Mandatory
Redemption Obligation"), such Mandatory Redemption Obligation shall be
discharged as soon as the Corporation is able to discharge such Mandatory
Redemption Obligation. If and so long as any Mandatory Redemption Obligation
with respect to the Senior Preferred Stock shall not be fully discharged, the
Corporation shall not (i) directly or indirectly, redeem, purchase, or
otherwise acquire any Parity Security or discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any Parity
Securities (except in connection with a redemption, sinking fund or other
similar obligation to be satisfied pro rata with the Senior Preferred Stock)
or (ii) in accordance with paragraph 3(e), declare or make any Junior
Securities Distribution, or, directly or indirectly, discharge any mandatory
or optional redemption, sinking fund or other similar obligation in respect of
the Junior Securities.
(g) Failure to Pay Dividends. Notwithstanding the foregoing
provisions of this paragraph (5), unless full cumulative cash dividends
(whether or not declared) on all outstanding shares of Senior Preferred Stock
shall have been paid or contemporaneously are declared and paid or set apart
for payment for all dividend periods terminating on or prior to the applicable
redemption date, none of the shares of Senior Preferred Stock shall be
redeemed, and no sum shall be set aside for such redemption, unless shares of
Senior Preferred Stock are redeemed pro rata.
(6) Procedure for Redemption. (a) In the event the Corporation
shall redeem shares of Senior Preferred Stock pursuant to Sections 5(a), (b)
or (d), notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed at such
holder's address as the same appears on the stock register of the Corporation;
provided that neither the failure to give such notice nor any defect therein
shall affect the validity of the giving of notice for the redemption of any
share of Senior Preferred Stock to be redeemed except as to the holder to whom
the Corporation has failed to give said notice or except as to the holder
whose notice was defective. Each such notice shall state: (i) the redemption
date; (ii) the number of shares of Senior Preferred Stock to be redeemed;
(iii) the redemption price; (iv) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; and (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date.
(b) In the case of any redemption pursuant to Sections 5(a),
(b) or (d) hereof, notice having been mailed as provided in Section 6(a)
hereof, from and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the redemption price of
the shares called for redemption), dividends on the shares of Senior Preferred
Stock so called for redemption shall cease to accrue, and all rights of the
holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon surrender
in accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such share shall
be redeemed by the Corporation at the redemption price aforesaid. In case
fewer than all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(c) In the case of a redemption pursuant to Section 5(c)
hereof, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not more than 10 days following the occurrence of the Change
of Control and not less than 20 days prior to the redemption date, to each
holder of record of the shares to be redeemed at such holder's address as the
same appears on the stock register of the Corporation; provided that neither
the failure to give such notice nor any defect therein shall affect the
validity of the giving of notice for the redemption of any share of Senior
Preferred Stock to be redeemed except as to the holder to whom the Corporation
has failed to give said notice or except as to the holder whose notice was
defective. Each such notice shall state: (i) that a Change of Control has
occurred; (ii) the redemption date; (iii) the redemption price; (iv) that such
holder may elect to cause the Corporation to redeem all or any of the shares
of Senior Preferred Stock held by such holder; (v) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (vi) that dividends on the shares the holder elects to
cause the Corporation to redeem will cease to accrue on such redemption date.
Upon receipt of such notice, the holder shall, within 20 days
of receipt thereof, return such notice to the Corporation indicating the
number of shares of Senior Preferred Stock such holder shall elect to cause
the Corporation to redeem, if any.
(d) In the case of a redemption pursuant to Section 5(c)
hereof, notice having been mailed as provided in Section 6(c) hereof, from and
after the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares called
for redemption), dividends on such shares of Senior Preferred Stock as the
holder elects to cause the Corporation to redeem shall cease to accrue, and
all rights of the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption price) shall cease.
Upon surrender in accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for transfer, if the Board
of Directors of the Corporation shall so require and the notice shall so
state), such share shall be redeemed by the Corporation at the redemption
price aforesaid. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
(7) Exchange. (a) Subject to the provisions of this paragraph
(7) the Corporation may, at its option, at any time and from time to time on
any Dividend Payment Date, exchange, to the extent it is legally permitted to
do so, all, but not less than all, outstanding shares (and fractional shares)
of Senior Preferred Stock, for Exchange Debentures, provided that (i) on or
prior to the date of exchange the Corporation shall have paid to or declared
and set aside for payment to the holders of outstanding shares of Senior
Preferred Stock all accrued and unpaid cash dividends on shares of Senior
Preferred Stock through the exchange date in accordance with the next
succeeding paragraph; (ii) no event of default under the indenture (as defined
in such indenture) governing the Exchange Debentures shall have occurred and
be continuing; and (iii) no shares of Senior Preferred Stock are held on such
date by the DLJMB Funds or any of their Affiliates, or any of their Permitted
Transferees. The principal amount of Exchange Debentures deliverable upon
exchange of a share of Senior Preferred Stock, adjusted as hereinafter
provided, shall be determined in accordance with the Exchange Ratio (as
defined below).
Cash dividends on any shares of Senior Preferred Stock
exchanged for Exchange Debentures which have accrued but have not been paid as
of the date of exchange shall be paid in cash. In no event shall the
Corporation issue Exchange Debentures in denominations other than $1,000 or in
an integral multiple thereof. Cash will be paid in lieu of any such fraction
of an Exchange Debenture which would otherwise have been issued (which shall
be determined with respect to the aggregate principal amount of Exchange
Debentures to be issued to a holder upon any such exchange). Interest will
accrue on the Exchange Debentures from the date of exchange.
Prior to effecting any exchange hereunder, the Corporation
shall appoint a trustee to serve in the capacity contemplated by an indenture
between the Corporation and such trustee, containing customary terms and
conditions.
The Exchange Ratio shall be, as of any Dividend Payment Date,
$1.00 (or fraction thereof) of principal amount of Exchange Debenture for each
$1.00 of (i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if
any, per share of Senior Preferred Stock held by a holder on the applicable
exchange date.
"Affiliates" shall have the meaning ascribed such term in the
Investors' Agreement.
"Exchange Debentures" means 13% Subordinated Exchange
Debentures due 2010 of the Corporation, to be issued pursuant to an indenture
between the Corporation and a trustee, containing customary terms and
conditions, in accordance with the Term Sheet attached as Exhibit A hereto.
"Permitted Transferees" shall have the meaning ascribed to such
term in the Investors' Agreement.
(b) Procedure for Exchange. (i) In the event the Corporation shall
exchange shares of Senior Preferred Stock, notice of such exchange shall be
given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the exchange date, to each holder of record of the
shares to be exchanged at such holder's address as the same appears on the
stock register of the Corporation; provided that neither the failure to give
such notice nor any defect therein shall affect the validity of the giving of
notice for the exchange of any share of Senior Preferred Stock to be exchanged
except as to the holder to whom the Corporation has failed to give said notice
or except as to the holder whose notice was defective. Each such notice shall
state: (A) the exchange date; (B) the number of shares of Senior Preferred
Stock to be exchanged; (C) the Exchange Ratio; (D) the place or places where
certificates for such shares are to be exchanged for notes evidencing the
Exchange Debentures to be received by the exchanging holder; and (E) that
dividends on the shares to be exchanged will cease to accrue on such exchange
date.
(ii) Prior to giving notice of intention to exchange, the
Corporation shall execute and deliver with a bank or trust
company selected by the Corporation an indenture containing
customary terms and conditions. The Corporation will cause
the Exchange Debentures to be authenticated on the Dividend
Payment Date on which the exchange is effective, and will
pay interest on the Exchange Debentures at the rate and on
the dates specified in such indenture from the exchange date.
The Corporation will not give notice of its intention
to exchange under paragraph 6(b)(i) hereof unless it
shall file at the place or places (including a place in
the Borough of Manhattan, The City of New York)
maintained for such purpose an opinion of counsel (who
may be an employee of the Corporation) to the effect that
(i) the indenture has been duly authorized, executed and
delivered by the Corporation, has been duly qualified
under the Trust Indenture Act of 1939 (or that such
qualification is not necessary) and constitutes a valid
and binding instrument enforceable against the
Corporation in accordance with its terms (subject, as to
enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity
principles, and subject to such other qualifications as
are then customarily contained in opinions of counsel
experienced in such matters), (ii) the Exchange
Debentures have been duly authorized and, when executed
and authenticated in accordance with the provisions of
the indenture and delivered in exchange for the shares of
Preferred Stock, will constitute valid and binding
obligations of the Corporation entitled to the benefits
of the indenture (subject as aforesaid), (iii) neither
the execution nor delivery of the indenture or the
Exchange Debentures nor compliance with the terms,
conditions or provisions of such instruments will result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or agreement or
instrument, known to such counsel, to which the
Corporation or any of its subsidiaries is a party or by
which it or any of them is bound, or any decree,
judgment, order, rule or regulation, known to such
counsel, of any court or governmental agency or body
having jurisdiction over the Corporation and such
subsidiaries or any of their properties, (iv) the
Exchange Debentures have been duly registered for such
exchange with the Securities and Exchange Commission
under a registration statement that has become effective
under the Securities Act of 1933 (the "Act") or that the
exchange of the Exchange Debentures for the shares of
Senior Preferred Stock is exempt from registration under
the Act, and (v) the Corporation has sufficient legally
available funds for such exchange such that such exchange
is permitted under applicable law.
(iii) Notice having been mailed as aforesaid, from and
after the exchange date (unless default shall be made by the
Corporation in issuing Exchange Debentures in exchange for
the shares called for exchange), dividends on the shares of
Senior Preferred Stock so called for exchange shall cease to
accrue, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive
from the Corporation the Exchange Debentures and any rights
such holder, upon the exchange, may have as a holder of the
Exchange Debenture) shall cease. Upon surrender in
accordance with said notice of the certificates for any
shares so exchanged (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall
so require and the notice shall so state), such share shall
be exchanged by the Corporation for the Exchange Debentures
at the Exchange Ratio. In case fewer than all the shares
represented by any such certificate are exchanged, a new
certificate shall be issued representing the unexchanged
shares without cost to the holder thereof.
(iv) Each exchange shall be deemed to have been effected
immediately after the close of business on the relevant
Dividend Payment Date, and the person in whose name or names
any Exchange Debentures shall be issuable upon such exchange
shall be deemed to have become the holder of record of the
Exchange Debentures represented thereby at such time on such
Dividend Payment Date.
(v) Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon exchange of
the Senior Preferred Stock, the Corporation shall comply
with all applicable federal and state laws and regulations
which require action to be taken by the Corporation.
(c) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
notes evidencing Exchange Debentures on exchange of the Senior Preferred Stock
pursuant hereto; provided that the Corporation shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issue
or delivery of Exchange Debentures in a name other than that of the holder of
the Senior Preferred Stock to be exchanged and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(8) Voting Rights. (a) The holders of record of shares of
Senior Preferred Stock shall not be entitled to any voting rights except as
hereinafter provided in this paragraph (8), as otherwise provided by law or
as provided in the Investors' Agreement.
(b) If and whenever (i) four consecutive or six quarterly
cash dividends payable on the Senior Preferred Stock have not been paid in
full, (ii) for any reason (including the reason that funds are not legally
available for a redemption), the Corporation shall have failed to discharge
any Mandatory Redemption Obligation (including a redemption in the Event of
a Change of Control pursuant to Section 5(c) hereof), (iii) the Corporation
shall have failed to provide the notice required by Section 6(c) hereof
within the time period specified in such section or (iv) the Corporation
shall have failed to comply with Sections 3(d), 3(e) or 8(c) hereof, (1)
the number of directors then constituting the Board of Directors shall be
increased by two and the holders of a majority of the outstanding shares of
Senior Preferred Stock, together with the holders of shares of every other
series of preferred stock upon which like rights have been conferred and
are exercisable (resulting from either the failure to pay dividends or the
failure to redeem) (any such series is referred to as the "Preferred
Shares"), voting as a single class regardless of series, shall be entitled
to elect the two additional directors to serve on the Board of Directors at
any annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the Senior Preferred
Stock and the Preferred Shares called as hereinafter provided. Whenever
(i) all arrears in cash dividends on the Senior Preferred Stock and the
Preferred Shares then outstanding shall have been paid and cash dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, (ii) the Corporation shall have
fulfilled its Mandatory Redemption Obligation, (iii) fulfilled its
obligation to provide notice as specified in subsection (b)(iii) hereof, or
(iv) the Corporation shall have complied with Sections 3(d), 3(e), or 8(c)
hereof, as the case may be, then the right of the holders of the Senior
Preferred Stock to elect such additional two directors shall cease (but
subject always to the same provisions for the vesting of such voting rights
in the case of any similar future (i) arrearage in six consecutive
quarterly cash dividends, (ii) failure to fulfill any Mandatory Redemption
Obligation, (iii) failure to fulfill the obligation to provide the notice
required by Section 6(d) hereof within the time period specified in such
section or (iv) failure to comply with Sections 3(d), 3(e), or 8(c)) and
the terms of office of all persons elected as directors by the holders of
the Senior Preferred Stock shall forthwith terminate and the number of the
Board of Directors shall be reduced accordingly. At any time after such
voting power shall have been so vested in the holders of shares of Senior
Preferred Stock and the Preferred Shares, the secretary of the Corporation
may, and upon the written request of any holder of Senior Preferred Stock
(addressed to the secretary at the principal office of the Corporation)
shall, call a special meeting of the holders of the Senior Preferred Stock
and of the Preferred Shares for the election of the two directors to be
elected by them as herein provided, such call to be made by notice similar
to that provided in the Bylaws of the Corporation for a special meeting of
the stockholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the
secretary within 20 days after receipt of any such request, then any holder
of shares of Senior Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock books
of the Corporation. The directors elected at any such special meeting
shall hold office until the next annual meeting of the stockholders or
special meeting held in lieu thereof if such office shall not have
previously terminated as above provided. If any vacancy shall occur among
the directors elected by the holders of the Senior Preferred Stock and the
Preferred Shares, a successor shall be elected by the Board of Directors,
upon the nomination of the then-remaining director elected by the holders
of the Senior Preferred Stock and the Preferred Shares or the successor of
such remaining director, to serve until the next annual meeting of the
stockholders or special meeting held in place thereof if such office shall
not have previously terminated as provided above.
(c) Without the written consent of a majority of the
outstanding shares of Senior Preferred Stock or the vote of holders of a
majority of the outstanding shares of Senior Preferred Stock at a meeting of
the holders of Senior Preferred Stock called for such purpose, the Corporation
will not (i) amend, alter or repeal any provision of the Certificate of
Incorporation (by merger or otherwise) so as to adversely affect the
preferences, rights or powers of the Senior Preferred Stock; provided that any
such amendment that decreases the dividend payable on or the Liquidation Value
of the Senior Preferred Stock shall require the affirmative vote of holders of
each share of Senior Preferred Stock at a meeting of holders of Senior
Preferred Stock called for such purpose or written consent of the holder of
each share of Senior Preferred Stock; or (ii) create, authorize or issue any
class of stock ranking prior to, or on a parity with, the Senior Preferred
Stock with respect to dividends or upon liquidation, dissolution, winding up
or otherwise, or increase the authorized number of shares of any such class or
series, or reclassify any authorized stock of the Corporation into any such
prior or parity shares or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such prior or parity
shares, except that the Corporation may, without such approval, create
authorize and issue Parity Securities for the purpose of utilizing the
proceeds from the issuance of such Parity Securities for the redemption or
repurchase of all outstanding shares of Senior Preferred Stock in accordance
with the terms hereof or of the Investors' Agreement..
(d) In exercising the voting rights set forth in this paragraph
(8), each share of Senior Preferred Stock shall have one vote per share,
except that when any other series of preferred stock shall have the right to
vote with the Senior Preferred Stock as a single class on any matter, then the
Senior Preferred Stock and such other series shall have with respect to such
matters one vote per $25 of Liquidation Value or other liquidation preference.
Except as otherwise required by applicable law or as set forth herein, the
shares of Senior Preferred Stock shall not have any relative, participating,
optional or other special voting rights and powers and the consent of the
holders thereof shall not be required for the taking of any corporate action.
(9) Reports. So long as any of the Senior Preferred Stock is
outstanding, the Corporation will furnish the holders thereof with the
quarterly and annual financial reports that the Corporation is required to
file with the Securities and Exchange Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 or, in the event the
Corporation is not required to file such reports, reports containing the same
information as would be required in such reports.
(10) General Provisions. (a) The term "Person" as used herein
means any corporation, limited liability company, partnership, trust,
organization, association, other entity or individual.
(b) The term "outstanding", when used with reference to shares
of stock, shall mean issued shares, excluding shares held by the Corporation
or a subsidiary.
(c) The headings of the paragraphs, subparagraphs, clauses and
subclauses used herein are for convenience of reference only and shall not
define, limit or affect any of the provisions hereof.
(d) Each holder of Senior Preferred Stock, by acceptance
thereof, acknowledges and agrees that payments of dividends, interest, premium
and principal on, and exchange, redemption and repurchase of, such securities
by the Corporation are subject to restrictions on the Corporation contained in
certain credit and financing agreements.
FIFTH: No contract or transaction between the Corporation and
one or more of its directors, officers, or stockholders or between the
Corporation and any person (as used herein "person" means any other
corporation, partnership, association, firm, trust, joint venture, political
subdivision, or instrumentality) or other organization in which one or more of
its directors, officers, or stockholders are directors, officers or
stockholders, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee which authorizes the
contract or transaction, or solely because his, her, or their votes are
counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed
or are known to the board of directors or the committee, and the board of
directors or committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or her relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved, or
ratified by the board of directors, a committee thereof (to the extent
permitted by applicable law), or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the board of directors or of a committee which authorizes the contract or
transaction.
SIXTH: The Board of Directors shall have the power to adopt,
amend or repeal the bylaws of the Corporation.
SEVENTH: Election of directors need not be by written ballot
unless the bylaws of the Corporation so provide.
EIGHTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) under Section 174 of the
Delaware Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Any repeal or amendment of this Article EIGHTH by
the stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation arising from an act or omission occurring prior to the time of
such repeal or amendment. In addition to the circumstances in which a
director of the Corporation is not personally liable as set forth in the
foregoing provisions of this Article EIGHTH, a director shall not be liable to
the Corporation or its stockholders to such further extent as permitted by any
law hereafter enacted, including without limitation any subsequent amendment
to the Delaware Law.
NINTH: (1) A director of the Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators
of such person) who was or is a party or is threatened to be made a party to,
or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise, shall be indemnified and held harmless by the Corporation
to the fullest extent permitted by Delaware Law. The right to indemnification
conferred in this Article NINTH shall also include the right to be paid by the
Corporation the expenses incurred in connection with any such proceeding in
advance of its final disposition to the fullest extent authorized by Delaware
Law. The right to indemnification conferred in this Article NINTH shall be a
contract right.
(b) The Corporation may, by action of its Board of Directors,
provide indemnification to such of the officers, employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss incurred by such person in any such capacity or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under Delaware Law.
(4) The rights and authority conferred in this Article NINTH
shall not be exclusive of any other right which any person may otherwise have
or hereafter acquire.
(5) Neither the amendment nor repeal of this Article NINTH, nor
the adoption of any provision of this Certificate of Incorporation or the
bylaws of the Corporation, nor, to the fullest extent permitted by Delaware
Law, any modification of law, shall eliminate or reduce the effect of this
Article NINTH in respect of any acts or omissions occurring prior to such
amendment, repeal, adoption or modification.
TENTH: The Corporation expressly elects not to be governed by
Section 203 of the Delaware Law.
ELEVENTH: The Corporation reserves the right to amend this
Certificate of Incorporation in any manner permitted by Delaware Law and, with
the sole exception of those rights and powers conferred under the above
Article NINTH, all rights and powers conferred herein on stockholders,
directors and officers, if any, are subject to this reserved power.
EXHIBIT A
---------
SUMMARY OF TERMS
OF INDENTURE FOR
13% SUBORDINATED EXCHANGE DEBENTURES
Parties: Thermadyne Holdings Corporation (the
"Corporation") and [ ], as trustee.
Issue: 13% Exchange Debentures (the "Exchange
Debentures") to be issued by the Corporation, at
its option, in exchange for any or all the
outstanding shares of 13% Senior Exchangeable
Preferred Stock due 2010 (the "Senior Preferred
Stock") issued on or about May 15, 1998 to DLJ
Merchant Banking Partners II, L.P. and certain of
its affiliates (the "DLJ Entities").
Maturity: May 15, 2010.
Interest: 13% annual rate, payable semi-annually.
Through the semi-annual interest payment period
ending in May 2003, semi-annual interest will
accrete on a compound basis (i.e. non-cash pay)
and increase the face amount of the Exchange
Debentures, thereafter interest will be payable in
cash.
Ranking: The Exchange Debentures will rank senior to all
other subordinated debt, preferred stock and
common equity of the Corporation.
Optional Redemption: The Exchange Debentures will be redeemable at
any time after May 15, 2003 at the option of the
Corporation, in whole or in part, at the same
redemption prices set forth in the desigination of
the Senior Preferred Stock set forth in Article
FOURTH, paragraph (c) of the Restated
Certificate of Incorporation of the Surviving
Corporation.
Change of Control In the event of a Change of Control of the
Repurchase Right: Corporation each holder of the Exchange
Debentures will have the right to require the
Corporation to repurchase all or any part of such
holder's Exchange Debentures at a purchase price
of 101% of the sum of the accreted value thereof
plus accrued and unpaid cash interest, if any, to
the repurchase date.
Covenants: The Debentures will contain covenants that are
substantially the same as the covenants contained
in the Indenture of the [ ____ Senior Discount
Debentures due 2008] of the Corporation and will
limit, among other things, the ability of the
Corporation and its subsidiaries (i) to incur
additional indebtedness, (ii) to pay dividends and
make other distributions on its capital stock, (iii)
to repurchase its capital stock or warrants,
options or other rights to acquire shares of its
capital stock or any indebtedness subordinated to
the Exchange Debentures, (iv) to make certain
other restricted payments, (v) to make certain
investments or asset sales, (vi) to engage in
transactions with affiliates, (vii) to create liens,
(viii) to permit "layering" of indebtedness and
(ix) to merge or consolidate or transfer all or
substantially all of its assets."
7. Except as specifically amended by this Amendment, the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment to the Agreement as of this 22nd day of April, 1998.
THERMADYNE HOLDINGS CORPORATION
By: /s/ RANDALL E. CURRAN
---------------------------
Name: Randall E. Curran
Title: President
MERCURY ACQUISITION CORPORATION
By: /s/ WILLIAM F. DAWSON, JR.
---------------------------
Name: William F. Dawson, Jr.
Title: Vice President
EXHIBIT 8
AMENDMENT NO. 1 TO VOTING AGREEMENT
AMENDMENT NO. 1 TO VOTING AGREEMENT (this "Amendment"), dated
February 20, 1998, by and between Mercury Acquisition Corporation, a Delaware
corporation ("MergerSub"), Thermadyne Holdings Corporation, a Delaware
corporation (the "Company"), and the undersigned holders (each, a
"Stockholder") of shares of Company Common Stock
WHEREAS, MergerSub, the Company and the Stockholders are
parties to a Voting Agreement dated as of January 20, 1998 (the "Voting
Agreement"); and
WHEREAS, the parties desire to amend a certain schedule of the
Voting Agreement:
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the Voting Agreement, the parties hereto
agree as follows:
1. Schedule A of the Voting agreement is hereby amended to
read in its entirety as follows:
SCHEDULE A
----------
Shares of Company
Stockholder Common Stock
- ------------------------------- --------------------
Magten Asset Management Corp. 107,047
General Motors Employees 1,701,125
Domestic Group Pension Trust
City of Los Angeles Fire and 519,000
Police Pension Systems
Hughes Retirement Plans Trust 640,000
Navy Exchange Service Command 300,000
Retirement Trust
Western Union Telegraph
Company Pension Plan 250,601
-----------
3,517,773
2. Except as specifically amended by this Amendment, the
Voting Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 to the Voting agreement as of this 20th day of February, 1998.
MERCURY ACQUISITION
CORPORATION
By /s/ William F. Dawson
-----------------------------------
Name: William F. Dawson
Title: Vice President and Secretary
THERMADYNE HOLDINGS
CORPORATION
By /s/ James H. Tate
-----------------------------------
Name: James H. Tate
Title: Senior Vice President and
Chief Financial Officer
GENERAL MOTORS EMPLOYEES
DOMESTIC GROUP PENSION TRUST
By: Mellon Bank, N.A., solely in its
capacity as Trustee for General Motors
Employees Domestic Group Pension Trust as
directed by Magten Asset Management Corp.,
and not in its individual capacity
By /s/ Bernadette Rist
-----------------------------------
Name: Bernadette Rist
Title: Authorized Signatory
MAGTEN ASSET MANAGEMENT
CORP.
By /s/ Talton S. Embry
-----------------------------------
Name: Talton S. Embry
Title: Chairman
CITY OF LOS ANGELES FIRE
AND POLICE PENSION
SYSTEMS
HUGHES RETIREMENT PLANS TRUST
NAVY EXCHANGE SERVICE
COMMAND RETIREMENT
TRUST
WESTERN UNION TELEGRAPH
COMPANY PENSION PLAN
By Magten Asset Management Corp., as
Attorney-in-Fact
By /s/ Talton S. Embry
-----------------------------------
Name: Talton S. Embry
Title: Chairman
