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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
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)
December 22 , 1999
(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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Page 1 of 86
<PAGE>
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
2,141,172
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
2,141,172
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,141,172 - 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)
55.4% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 86
<PAGE>
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
85,271
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
85,271
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
85,271 - 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)
2.4% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 86
<PAGE>
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
6,752
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
6,752
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,752 - 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)
0.2% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 86
<PAGE>
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
34,621
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
34,621
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
34,621 - 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)
1.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 86
<PAGE>
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
9,614
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
9,614
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,614 - 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)
0.3% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 6 of 86
<PAGE>
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
105,292
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
105,292
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
105,292 - 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)
2.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 7 of 86
<PAGE>
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
2,382,722
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
2,382,722
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,382,722 - 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)
61.1% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 8 of 86
<PAGE>
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
2,382,722
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
2,382,722
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,382,722 - 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)
61.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 9 of 86
<PAGE>
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
125,183
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
125,183
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
125,183 - 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)
3.5% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 10 of 86
<PAGE>
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
46,489
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
46,489
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
46,489 - 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)
1.3% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 11 of 86
<PAGE>
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
171,672
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 3,399,089
WITH
9 SOLE DISPOSITIVE POWER
171,672
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
171,672 - 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)
4.8% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 12 of 86
<PAGE>
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
171,672
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
171,672
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
171,672 - 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)
4.8% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 13 of 86
<PAGE>
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
4,120
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
4,120
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,120 - 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)
0.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 14 of 86
<PAGE>
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
403,770
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
403,770
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
403,770 - 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)
11.1% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 15 of 86
<PAGE>
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
417,504
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
417,504
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
417,504 - 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)
11.3% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 16 of 86
<PAGE>
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
387,437
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
387,437
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
387,437 - 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)
10.6% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 17 of 86
<PAGE>
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
3,399,089
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
3,399,089
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,399,089 - 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)
84.4% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 18 of 86
<PAGE>
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
49,368
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
49,368
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,368 - 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)
1.4% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 19 of 86
<PAGE>
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
49,368
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
49,368
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,368 - 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)
1.4% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 20 of 86
<PAGE>
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
3,399,089
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 3,399,089
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
3,399,089
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,399.089 - 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)
84.4% - See Item 5
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 21 of 86
<PAGE>
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
AXA Financial, Inc. (f/k/a 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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 22 of 86
<PAGE>
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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 23 of 86
<PAGE>
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 24 of 86
<PAGE>
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 25 of 86
<PAGE>
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 26 of 86
<PAGE>
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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 27 of 86
<PAGE>
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
AXA Conseil Vie Assurance Mutuelle (f/k/a 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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 28 of 86
<PAGE>
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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 29 of 86
<PAGE>
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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 30 of 86
<PAGE>
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
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
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)
See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 31 of 86
<PAGE>
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) AXA Financial, Inc. (formerly known as The Equitable Companies
Incorporated), a Delaware corporation ("AXA Financial"); (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) AXA Conseil Vie Assurance Mutuelle (formerly known as
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, 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
Page 32 of 86
<PAGE>
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.
AXA Financial is a Delaware corporation and is a holding company. As of
June 30, 1999, AXA Financial owns, directly or indirectly, 70.5% of DLJ.
Page 33 of 86
<PAGE>
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 October 1, 1999, approximately 58% of the outstanding
common stock of AXA Financial 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 AXA Financial and certain of its
insurance subsidiaries, the voting shares of AXA Financial 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 AXA Financial
As of June 30, 1999, AXA directly owned 1.5% of DLJ.
Finaxa is a societe anonyme organized under the laws of France and is a
holding company. As of October 1, 1999, Finaxa controlled directly and
indirectly approximately 20.3% of the issued ordinary shares (representing
approximately 32.1% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle,
AXA Courtage Assurance Mutuelle, and AXA Conseil Vie Assurance 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 October 1, 1999, the Mutuelles AXA, as a group, control
approximately 61.7% of the issued shares (representing approximately 72.3% of
the voting power) of Finaxa and 22.7% of the shares of Finaxa (representing
13.7% of the voting power) were owned by Paribas, a French bank. As of October
1, 1999, the Mutuelles AXA, in addition to their indirect beneficial ownership
of AXA's ordinary shares through Finaxa, directly beneficially owned
approximately 3.1% of the ordinary shares (representing approximately 4.9% 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 AXA
Financial 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 AXA Conseil Vie Assurance 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 AXA
Financial, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules A
through N, 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 N 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.
Page 34 of 86
<PAGE>
On December 22, 1999, the DLJ Funds purchased, for an aggregate
purchase price of $25,000,000 purchased, pursuant to a Subscription Agreement
("Subscription Agreement") among Thermadyne, Thermadyne Mfg. LLC and the DLJ
Funds (attached as Exhibit 3 hereto) dated December 22, 1999, warrants to
purchase 436,965 Shares ("Warrants") and a principal amount of $25,000,000
Junior Subordinated Notes due 2009 (the "Notes") of Thermadyne Mfg. LLC (a
specimen of which is attached as an exhibit to the Subscription Agreement). Each
Warrant (a specimen of which is attached as an exhibit to the Subscription
Agreement) is exercisable at a price of $0.01 per Warrant Share (subject to
adjustment).
Item 4. Purpose of Transaction.
The DLJ Funds invested additional capital in Thermadyne and Thermadyne
Mfg. LLC which will be used for general corporate purposes.
Item 5. Interest in Securities of the Issuer.
(a) and (b) The DLJ Entities, for the purposes of Rule 13d-3
promulgated under the Exchange Act, may be deemed to beneficially own, 3,339,089
Shares, representing approximately 84.4% of the outstanding Shares of
Thermadyne. Refer to Exhibit 5 for the aggregate number and percentage of Shares
beneficially owned by each DLJ Entity and the voting and dispositive power of
each DLJ Entity.
(c) No transactions in the Shares have been effected by the DLJ Funds,
any other person controlling the DLJ Funds, or to the best of its knowledge, any
of the persons named in Schedules A through N since October 23, 1999.
(d) Inapplicable.
(e) Inapplicable.
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
Shares that may be deemed to be owned beneficially by each of DLJCI and UKIP
1997 INC. Because of AXA Financial's ownership of DLJ, AXA Financial may be
deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly
the Shares that may be deemed to be beneficially owned indirectly by DLJ. Each
of DLJ and AXA Financial disclaims beneficial ownership of the Shares.
Because of AXA's ownership interest in AXA Financial, and the AXA
Voting Trustees' power to vote the AXA Financial 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 Shares that AXA
Financial 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 Shares.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See response to Item 3.
Thermadyne, Thermadyne Mfg. LLC (the "Subsidiary") and the DLJ Funds
have entered into a Registration Rights Agreement, attached as Exhibit 4 and
incorporated by reference, which grants the DLJ Funds certain rights with
respect to registration under the Securities Act of 1933, as amended (the
"Act"). Under the terms of the Registration Rights Agreement, at any time after
Thermadyne has filed its annual report on Form 10-K for the year ended December
31, 1999, the holders of 50% or more of the Notes or Warrants may demand
Thermadyne or the
Page 35 of 86
<PAGE>
Subsidiary, as the case may be, to effect a registration of the Notes or
Warrants under the Act. Thermadyne is obliged to effect one demand registration
for the Warrants and the Subsidiary is obliged to effect up to two demand
registrations for the Notes. If any Warrants are included in a demand
registration, Thermadyne shall prepare a shelf registration statement under Rule
415 of the Act permitting the resale of Warrants and the shares issuable upon
exercise of the warrants ("Warrant Shares") and shall use its best efforts to
cause the warrant shelf registration statement to be declared effective within
90 days of the time such demand registration is effected. Thermadyne shall keep
the warrant shelf registration statement effective until the earlier of (i) two
years following the date as of which no Warrants remain outstanding and (ii) if
all of the Warrants expire unexercised, December 15, 2009.
Thermadyne's registration obligations in respect of the Warrants shall
expire on the earlier of (i) the date on which each Warrant or Warrant Share has
been disposed of in accordance with a warrant registration statement or when
such Warrant Share is issued upon exercise of a Warrant in accordance with a
registration statement and (ii) the date on which each Warrant or Warrant Share
is distributed to the public pursuant to Rule 144 under the Act. The
Subsidiary's registration obligations in respect of the Notes shall expire on
the earlier of (i) the date on which each Note has been disposed in accordance
with a note registration statement and (ii) the date on which each Note is
distributed to the public pursuant to Rule 144 under the Act.
The Registration Rights Agreement also grants "piggy-back" rights to
the DLJ Funds to participate in certain registration statements filed by
Thermadyne in respect of any equity securities of Thermadyne. The Registration
Rights Agreement also contains a "lock-up" provision pursuant to which the DLJ
Funds may be restricted from transferring Notes or Warrants in public sales
during an underwriter's public offering of Notes or Warrants.
Except for the agreements described in this Schedule 13D, 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.
A copy of each of the Subscription Agreement dated as of December 22,
1999 and the Registration Rights Agreement dated as of December 22, 1999 are
attached hereto as Exhibits 3 and 4, respectively, and are incorporated herein
by reference. The summaries of the terms of the Subscription Agreement and the
Registration Rights Agreement set forth herein are qualified in their entirety
by reference to Exhibits 3 and 4, respectively.
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: Subscription Agreement dated as of December 22, 1999 among
Thermadyne Holdings Corporation, Thermadyne Mfg. LLC and the DLJ Funds.
Exhibit 4: Registration Rights Agreement dated as of December 22, 1999
among Thermadyne Holdings Corporation, Thermadyne Mfg. LLC and the DLJ Funds.
Exhibit 5: Schedule of Reporting Person's holdings.
Page 36 of 86
<PAGE>
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: January 4, 2000
DLJ Merchant Banking Partners II, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 37 of 86
<PAGE>
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: January 4, 2000
DLJ Merchant Banking Partners II-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 38 of 86
<PAGE>
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: January 4, 2000
DLJ Millennium Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 39 of 86
<PAGE>
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: January 4, 2000
DLJ Millennium Partners -A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 40 of 86
<PAGE>
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: January 4, 2000
DLJ EAB Partners, L.P.
By DLJ LBO Plans Management Corporation
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 41 of 86
<PAGE>
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: January 4, 2000
DLJ Offshore Partners II, C.V.
By DLJ Merchant Banking II, Inc.,
as Advisory General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 42 of 86
<PAGE>
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: January 4, 2000
DLJ Merchant Banking II, LLC
By DLJ Merchant Banking II, Inc.,
as Managing Member
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 43 of 86
<PAGE>
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: January 4, 2000
DLJ Merchant Banking II, Inc.
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 44 of 86
<PAGE>
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: January 4, 2000
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 45 of 86
<PAGE>
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: January 4, 2000
DLJ Diversified Partners-A, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 46 of 86
<PAGE>
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: January 4, 2000
DLJ Diversified Associates, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 47 of 86
<PAGE>
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: January 4, 2000
DLJ Diversified Partners, Inc.
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 48 of 86
<PAGE>
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: January 4, 2000
DLJ First ESC, L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 49 of 86
<PAGE>
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: January 4, 2000
DLJ ESC II, L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 50 of 86
<PAGE>
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: January 4, 2000
DLJ LBO Plans Management Corporation
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 51 of 86
<PAGE>
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: January 4, 2000
DLJMB Funding II, Inc.
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 52 of 86
<PAGE>
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: January 4, 2000
DLJ Capital Investors, Inc.
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 53 of 86
<PAGE>
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: January 4, 2000
UK Investment Plan 1997 Partners
By UK Investment Plan 1997, Inc.
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 54 of 86
<PAGE>
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: January 4, 2000
UK Investment Plan 1997, Inc.
By: /s/ Ivy Dodes
-----------------------------------------
Name: Ivy Dodes
Title: Vice President
Page 55 of 86
<PAGE>
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: January 4, 2000
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie White
-----------------------------------------
Name: Marjorie White
Title: Vice President and Secretary
Page 56 of 86
<PAGE>
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: January 4, 2000
AXA Financial, Inc.
By: /s/ Alvin H. Fenichel
-----------------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
Page 57 of 86
<PAGE>
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: January 4, 2000
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance 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
Page 58 of 86
<PAGE>
Schedule A
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
* 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
Mark A. Competiello Vice President and Tax Manager
Stuart S. Flamberg Vice President and Director of Taxes
Carlos Garcia Managing Director
Charles J. Hendrickson Treasurer
Michael S. Isikow Vice President
Edward A. Poletti Senior Vice President and Controller
George Varughese Managing Director and Assistant Secretary
Marjorie S. White Secretary
- ----------------------
* Director
Page 59 of 86
<PAGE>
Schedule B
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.
Nicole S. Arnaboldi Managing Director
Mark A. Competiello Vice President and Tax Manager
Thompson Dean Managing Director
Ivy B. Dodes Vice President
Stuart S. Flamberg Director of Taxes
Peter T. Grauer Managing Director
Charles A. Hendrickson Treasurer
Michael S. Isikow Vice President
David L. Jaffe Managing Director
Steven E. Lebow Managing Director
Page 60 of 86
<PAGE>
Edward A. Poletti Vice President and Controller
Susan Schnabel Managing Director
Barry A. Sholem Managing Director
Yves B. Sisteron Managing Director
Osamu Watanabe Vice President
David R. Weil Managing Director
Marjorie S. White Secretary
Karl R. Wyss Managing Director
- ------------
* Director
Page 61 of 86
<PAGE>
Schedule C
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.
Mark A. Competiello Vice President and Tax Manager
Ivy B. Dodes Vice President
Stuart S. Flamberg Vice President and Director of Taxes
- ------------
* Director
Page 62 of 86
<PAGE>
Schedule D
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.
Mark A. Competiello Vice President and Tax Manager
Ivy B. Dodes Vice President and Assistant Secretary
John S. Ficara Vice President
Stuart S. Flamberg Director of Taxes
Charles J. Hendrickson Treasurer
Matthew Kelly Vice President
Edward A. Poletti Vice President and Treasurer
Osamu Walanabe Vice President and Treasurer
Arthur Zuckerman Vice President
- ------------
* Director
Page 63 of 86
<PAGE>
Schedule E
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, Donaldson, Lufkin &
Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Chairman, Banking
Group, Managing Director, Donaldson, Lufkin
& Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Executive Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President; Executive Vice
President and Chief Financial Officer,
Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary
Charles J. Hendrickson Treasurer
Stuart S. Flamberg Director of Taxes
Mark A. Competiello Vice President and Tax Manager
- ------------
* Director
Page 64 of 86
<PAGE>
Schedule F
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
---------------------- ----------------------------
* Stuart S. Flamberg Vice President and Director of Taxes; Senior
Vice President and Director of Taxes,
Donaldson, Lufkin & Jenrette, Inc.
* Mark A. Competiello Vice President and Tax Manager; Senior Vice
President and Tax Manager, Donaldson, Lufkin
& Jenrette, Inc.
Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
Ivy B. Dodes Vice President
Charles J. Hendrickson Treasurer
Edward A. Poletti Vice President
Osamu Walanabe Vice President
Marjorie S. White Vice President, Secretary and Treasurer; Vice
President and Secretary, Donaldson, Lufkin &
Jenrette, Inc.
- ------------
* Director
Page 65 of 86
<PAGE>
Schedule G
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 Insurance
23, avenue Matignon Activities in the United States, United
75008 Paris, France Kingdom, Benelux, Northern and
Eastern Europe
* 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
* Henri G. Hottinguer (3) Chairman of Financier Hottinguer
Financiere Hottinguer (banking)
43, rue Taitbout
75009 Paris, France
* W. Edwin Jarmain (2) 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 AXA Financial, Inc.
New York, New York 10104
Page 66 of 86
<PAGE>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
* 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, AXA Financial, Inc.
* John C. West Chairman, Siebels Bruce Group, Inc.
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Hamilton E. James Chairman, Banking Group
* Richard S. Pechter Chairman, Financial Services Group
* Anthony F. Daddino Executive Vice President and Chief
Financial Officer
* David DeLucia Head, Fixed Income Division
* Stuart M. Robbins Managing Director, Global Institutional
Equities Group
* Jane Mack Gould Senior Vice President and Portfolio
Manager, Alliance
* Michael Hegarty Vice Chairman and Chief Operating
Officer, AXA Financial, Inc.
- ----------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
Page 67 of 86
<PAGE>
Schedule H
Executive Officers and Directors
of
AXA Financial, Inc.(1)
The names of the Directors and the names and titles of the Executive
Officers of AXA Financial, Inc. ("AXA Financial") 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 AXA Financial 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
AXA Financial and each individual is a United States citizen.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear (1) Chairman of the Executive Board, AXA
AXA
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette, Inc.
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group Human
AXA Resources and Communications, AXA
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Chairman of the Board; Senior Executive Vice
AXA President, Financial Services and Insurance
23, avenue Matignon Activities in the United States, United
75008 Paris, France Kingdom, Benelux, Northern and Eastern
Europe, AXA
* Joseph L. Dionne Chairman of the Board, The McGraw-Hill
The McGraw-Hill Companies Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* Jacques Friedmann (1) Chairman of the Supervisory Board,
AXA AXA
9, Place Vendome
75001 Paris
France
- ------------
(1) Formerly known as The Equitable Companies Incorporated
Page 68 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Robert E. Garber Executive Vice President and General Counsel;
Executive Vice President and Chief Legal
Officer, The Equitable Life Assurance Society
of the United States
* Donald J. Greene, Esq. Counselor-at-Law, Of Counsel, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene & MacRae Greene & MacRae, L.L.P. (law firm)
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer,
Fox-Pitt, Kelton Group Limited Fox-Pitt, Kelton Group Limited
35 Wilson Street (investment banking firm)
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive Officer,
Harris Corporation currently Director, Harris Corporation
1025 NASA Boulevard (manufacturer of electronic, telephone and
Melbourne, FL 32919 copying systems)
* John H. F. Haskell, Jr. Director and Managing Director, SBC Warburg
Dillon, Read & Co., Inc. Dillon Read, Inc. (formerly Dillon, Read &
535 Madison Avenue Co., Inc.) (investment banking firm)
New York, NY 10022
* Michael Hegarty Senior 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, Bestfoods Grocery
Bestfoods 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
Page 69 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
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) Vice Chairman of Credit Suisse First Boston
64, rue de Miromesnil (investment banking)
75008 Paris, 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 S. Suquet Executive Vice President; Senior Executive
Vice President and Chief Distribution Officer;
The Equitable Life Assurance Society of the
United States
* Peter J. Tobin Dean of the College of Business
8000 Utopia Parkway Administration, St. John's University
College of Business Administration
Bent Hall
Jamaica, NY 11439
Stanley B. Tulin Vice Chairman 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
</TABLE>
Page 70 of 86
<PAGE>
Schedule I
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 Board
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
Gerard de La Martiniere Senior Executive Vice President, Chief
Financial Officer
Michel Pinault Senior Executive Vice President,
Executive Board Secretary
Page 71 of 86
<PAGE>
Members of the Supervisory Board
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Jacques Friedmann Chairman of the Supervisory Board
9, Place Vendome
75008 Paris, France
Antoine Bernheim Chairman, Assicurazioni Generali
Lazard Freres et Cie S.p.A. (insurance)
121, boulevard Haussman
75008 Paris, France
Jacques Calvet Former Chairman of the Executive
75, rue de Tilsitt Board, Peugeot S.A. (auto
75116 Paris, France manufacturer)
Henri de Clermont - Tonnerre Chairman of the Supervisory Board,
ERSA Qualis SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
David Dautresme General Partner, Lazard Freres et Cie
Lazard Freres et Cie (investment banking)
121, boulevard Haussman
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie
Vivendi Generale des Eaux (industry and
General des Eaux services)
52, rue d'Anjou
75008 Paris, France
Paul Desmarais (7) Chairman and Chief Executive Officer,
Power Corporation of Canada Power Corporation (industry and
751, Square Victoria services)
Montreal Quebec
H3Y 3JY Canada
Jean-Rene Fourtou Chairman and Chief Executive Officer,
Rhone-Poulenc S.A. Rhone-Poulenc S.A. (industry)
25, quai Paul Doumer
93408 Courbevoie Cedex
France
Michel Francois-Poncet Chairman of the Supervisory Board,
3, Rue d'Antin Compagnie Financiere de Paribas
75002 Paris, France (financial services and banking)
Patrice Garnier Retired
Page 72 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Anthony J. Hamilton (1) Group Chairman and Chief Executive
Fox-Pitt, Kelton Group Limited of Fox-Pitt, Kelton Group Limited
35 Wilson Street (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Vice Chairman, Financier Hottinguer
Financiere Hottinguer (banking)
43, rue Taitbout
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lukfin &
c/o Donaldson, Lukfin & Jenrette, Inc. Jenrette, Inc. (investment banking)
277 Park Avenue
New York, New York 10172
Henri Lachmann Vice Chairman and Chief Executive
Schneider S.A. Officer, Schneider S.A. (electrical
64-70 Av. Jean-Baptiste Clement equipment)
92646 Boulogne Cedex, France
Gerard Mestrallet Chairman and Chief Executive Officer,
Suez-Lyonnaise des Eaux Suez Lyonnaise des Eaux (finance)
1, rue d'Astorg
75008 Paris, France
Friedel Neuber Chairman of the Executive Board,
Westdeutsche Landesbank WestDeutsche Landesbank (banking)
Girozentrale
Herzogstrasse 15
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking)
Sal Oppenheim Jr. & Cie
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive Officer,
B.N.P. Banque Nationale de Paris (banking)
16, Boulevard des Italiens
75009 Paris, France
Didier Pineau-Valencienne Vice Chairman Credit Suisse First
64, rue Miromesnit Boston (investment banking)
75008 Paris, France
Bruno Roger General Partner, Lazard Freres & Cie
Lazard Freres et Cie (investment banking)
121, Boulevard Haussman
75008 Paris, France
Page 73 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Simone Rozes First Honorary President, Cour de
2, rue Villaret de Joyeuse Cassation (government)
75017 Paris, France
Executive Officers
Claude Bebear Chairman of the Executive Board
AXA
23, avenue Matignon
75008 Paris, France
Jean-Luc Bertozzi Executive Officer of AXA
Tour AXA Assurances of I.A.R.D. Mutuelle and
1, place des Saisons AXA Assurances Vie Mutuelle
92083 Paris La Defense, France
Donald Brydon (1) Senior Executive Vice President;
AXA Investment Managers Chief Executive, AXA Investment
60 Gracechurch Street Managers Europe
London EC3V OHR
U.K.
John Chalsty (2) Senior Executive Vice President;
Donaldson, Lufkin & Jenrette, Inc. Chairman of Donaldson, Lufkin &
277 Park Avenue Jenrette, Inc.
New York, NY 10172
Henri de Castries Senior Executive vice President,
AXA Financial Services and Insurance
23, avenue Matignon Activities in the United States,
75008 Paris, France United Kingdom, Benelux, Northern and
Eastern Europe
Francoise Collach Senior Executive Vice President,
AXA Group Human Resources and
23, avenue Matignon Communications
75008 Paris, France
Jacques Deparis Executive Officer of AXA Courtage
AXA Courtage and AXA Collectives
26, rue Louis le Grand
75002 Paris, France
Michael Hegarty Vice Chairman and Chief Operating
AXA Financial, Inc. Officer of AXA Financial, Inc. and
1290 Avenue of the Americas President and Chief Operating Officer
New York, NY 10104 of The Equitable Life Assurance
Society of the United States
Page 74 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Tony Killen Senior Executive Vice President;
National Mutual Holdings Managing Director of National Mutual
447 Collins Street Holdings
Melbourne Victoria 3000
Australia
Claas Kleyboldt (4) Senior Executive Vice President;
AXA Colonia Konzern Chairman of the Executive Board
Gereondriesch 9-11 AXA Colonia Konzern AB
50670 Koln, Germany
Gerard de La Martiniere Senior Executive Vice President and
AXA Chief Financial Officer
23 avenue Matignon
75008 Paris, France
Edward Miller(2) President and Chief Executive Officer
AXA Financial, Inc. of AXA Financial, Inc.; Chairman and
1290 Avenue of the Americas Chief Executive Officer of The
New York, NY 10104 Equitable Life Assurance Society of
the United States
Jean-Marie Nessi Chairman and Chief Executive Officer
AXA Reassurance of AXA Reassurance
39, rue de colisee
75008 Paris, France
Francois Pierson Executive Officer of AXA Conseil
AXA Conseil I.A.R.D. and AXA Conseil Vie
21, rue de Chateaudun
75009 Paris, France
Michel Pinault Senior Executive Vice President and
AXA Secretary of the Executive Board
23, avenue Matignon
75008 Paris, France
Claude Tendil Senior Executive Vice President;
AXA Chairman and Chief Executive Officer
23, avenue Matignon - French Insurance activities,
75008 Paris, France international risks, transborder
insurance projects
Dave H. Williams (2) Senior Executive Vice-President;
Alliance Capital Chairman of Alliance Capital
1345 Avenue of the Americas Management Corporation
New York, NY 10105
Page 75 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Mark Wood(1)(3) Senior Executive Vice President;
SLPH Managing Director fo Sun Life &
107 Cheapside Provincial Holdings (insurance)
London EC2V 6DU
U.K.
- ----------
(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
Page 76 of 86
<PAGE>
Schedule J
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.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Executive Board, AXA
Henri de Castries Senior Executive Vice President, Financial
Services and Insurance Activities in the United
States, United Kingdom, Benelux, Northern
and Eastern Europe
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
ERSA SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
Permanent Representative of Poulenc S.A. (industry)
AXA Assurances
IA.R.D. Mutuelle
Rhone Units
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Vice Chairman, Financier Hottinguer (banking)
Financiere Hottinger
43, rue Taitbout
75009 Paris, France
* Paul Hottinguer (1) Chairman, Financier Hottinguer (banking)
Financiere Hottinger
43, rue Taitbout
75009 Paris, France
Page 77 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Henri Lachmann Vice Chairman and Chief Executive Officer,
Schneider S.A. Schneider S.A. (electrical equipment)
64-70, Av. Jean-Baptiste Clement
92646 Boulogne Cedex, France
* Andre Levy-Lang Chairman of Executive Board, Paribas
Paribas (banking)
3, rue d'Antin
75002 Paris, France
* Christian Manset Member of the Executive Board, Paribas
Paribas
3, rue d'Antin
75002 Paris, France
* Georges Rousseau Retired
Le Hameau de Verguetot
76430 Oudalle, France
* Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking)
BBV
Paseo de la Castillone, 81
28046 Madrid, Spain
Gerard de la Martiniere Chief Executive Officer; Senior Executive Vice
President and Chief Financial Officer of AXA
- ------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(2) Citizen of Spain
</TABLE>
Page 78 of 86
<PAGE>
Schedule K
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.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Jean-Luc Bertozzi Executive Officer of AXA Assurances I.A.R.D.
Tour AXA and AXA Assurances Vie
1, place des Saisons
92083 Paris La Defense, France
Jean-Pierre Chaffin Chairman
Representing ASSE Federation de la
Metallurgie CFE-CGC
5, rue la Bruyere
75009 Paris, France
* Gerard Coutelle Retired
7, rue Gounot
75007 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities in the
75008 Paris, France United States, United Kingdom, Benelux,
Northern and Eastern Europe
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
Rhone-Poulenc Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Henri Lachmann Vice President; Vice Chairman and Chief
Schneider S.A. Executive Officer, Schneider S.A. (electrical
64-70, Av. Jean-Baptiste Clement equipment)
92646 Boulogne, France
Page 79 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Francois Richer Retired
82, Avenue de Wagram
75017 Paris, France
Georges Rousseau Retired
* Lehameau de Verguetot
76430 Oudalle, Frances
* Claude Tendil Senior Executive Vice President of AXA;
AXA Chairman and Chief Executive Officer-French
23, avenue Matignon Insurance activities, international risks,
75008 Paris, France transborder insurance projects
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
ERSA SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
Jean de Ribes Manager
Fortuny Fortune Conseil
5, avenue Percier
75008 Paris, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 80 of 86
<PAGE>
Schedule L
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.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Jean-Luc Bertozzi Executive Officer of AXA Assurances I.A.R.D
Tour AXA and AXA Assurance Vie
1, place des Saisons
92083 Paris La Defense, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities in the
75008 Paris, France United States, United Kingdom, Benelux,
Northern and Eastern Europe
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
ERSA SCA (transportation)
90, rue de Miromesnil
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
Rhone-Poulence S.A. Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Vice Chairman and Chief
64-70, Av Jean-Baptiste Clement Executive Officer, Schneider S.A. (electrical
92646 Boulogne Cedex, France equipment)
* Francois Richer Retired
82, avenue de Wagram
75017 Paris, France
Page 81 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Georges Rousseau Retired
Le Hameau de Verguetot
76430 Oudalle, France
* Claude Tendil Senior Executive Vice President of AXA;
AXA Chairman and Chief Executive Officer -
23, avenue Matignon French Insurance activities, international risks,
75008 Paris, France transborder insurance projects
* Jean-Pierre Chaffin Chairman
Representing ASSE Federation de la
Metallurgie CFE-CGC
5, rue La Bruyere
75009 Paris, France
* Jean de Ribes Manager
Fortuny Fortune Conseil
5 Avenue Percier
75008 Paris, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 82 of 86
<PAGE>
Schedule M
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.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA
75008 Paris, France
* Francis Cordier Retired
* Gerard Coutelle Retired
7, rue Gounot
75007 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
AXA Services and Insurance Activities in the United
23, avenue Matignon States, United Kingdom, Benelux, Northern
75008 Paris, France and Eastern Europe
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
Rhone-Poulenc S.A. Poulenc S.A. (industry)
25, quai Paul Doumer
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Vice Chairman and Chief
Schneider S.A. Executive Officer, Schneider S.A. (electrical
64-70, Av. Jean-Baptiste Clement equipment)
92646 Boulogne Cedex, France
* Jean de Ribes Manager
Fortuny Fortune Conseil
5 avenue Percier
75008 Paris, France
Page 83 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Georges Rousseau Retired
Le Hameau de Verguetot
76430 Oudalle, France
* Claude Tendil Senior Executive Vice President; Chairman and
Tour Assur 38F Chief Executive Officer-French Insurance
92083 Paris La Defense, France Activities, international risks, transborder
insurance projects
* Jean - Pierre Chappin Chairman
Representing ASSE Federation de la
Metallurgie CFE-CGC
5, rue de La Bruyere
75008 Paris, France
Jacques Deparis Executive Officer of AXA Assurances I.A.R.D.
and AXA collectives
* Claude Tendil Senior Executive Vice President; Chairman and
AXA Chief Executive Officer - French Insurance
23, avenue Matignon Activities, International risks, transborder
75008 Paris, France insurance projects
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 84 of 86
<PAGE>
Schedule N
Executive Officers and
Members of Conseil d'Administration
of
AXA CONSEIL VIE ASSURANCE MUTUELLE(1)
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Conseil Vie 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 Conseil Vue Assurance 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
AXA Conseil Vie Assurance Mutuelle and each individual is a citizen of the
Republic of France.
<TABLE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
AXA AXA
23, avenue Matignon
75008 Paris, France
* Bernard Cornille Retired
* Henri de Castries Senior Executive Vice President, Financial
AXA Services and Life Insurance Activities in the
23, avenue Matignon United States, United Kingdom, Benelux,
75008 Paris, France Northern and Eastern Europe
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
ERSA SCA (transportation)
90 rue de Miromesnil
75008 Paris, France
* Fracis Cordier Retired
* Jean de Ribes Manager
Fortuny Fortune
Conseil
5 avenue Percier
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
Rhone-Poulenc S.A. Poulenc S.A. (manufacturer of chemicals and
25, Quai Paul Doumer agricultural products)
92408 Courbevoie Cedex, France
* Patrice Garnier Retired
- -----------
(1) Formerly known as Alpha Assurances Vie Mutuelle
Page 85 of 86
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
Schneider S.A. Officer, Schneider S.A. (electric equipment)
64-70, Av. Jean-Baptiste Clement
92646 Boulogne Cedex, France
* Francois Richer Retired
* Claude Tendil Senior Executive Vice President, AXA;
AXA Chairman and Chief Executive Officer, French
23, avenue Matignon insurance activities, international risks,
92083 Paris La Defense, France transborder insurance projects
* Francis Vaudour Retired
Francois Pierson Executive Officer, AXA Conseil Vie and AXA
AXA Conseil Conseil I.A.R.D.
21, rue de Chateaudun
75009 Paris, France
- ------------
* Member, Conseil d'Administration
</TABLE>
Page 86 of 86
EXHIBIT 3
SUBSCRIPTION AGREEMENT
dated as of
December 22, 1999
by and among
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.,
DLJMB FUNDING II, INC.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS-A, L.P.,
DLJ EAB PARTNERS, L.P.,
DLJ ESC II L.P.,
DLJ FIRST ESC, L.P.,
THERMADYNE HOLDINGS CORPORATION
and
THERMADYNE MFG. LLC
relating to the purchase and sale
of
Junior Subordinated Notes due 2009 of Thermadyne Mfg. LLC
and
Warrants to Purchase Shares of Common Stock
of Thermadyne Holdings Corporation
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale...............................................5
SECTION 2.02. Closing.........................................................5
SECTION 2.03. Purchase Price Allocation.......................................5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
SECTION 3.01. Corporate Existence and Power...................................6
SECTION 3.02. Corporate Authorization.........................................6
SECTION 3.03. Noncontravention................................................6
SECTION 3.04. Capitalization; Indebtedness....................................7
SECTION 3.05. Subsidiaries....................................................8
SECTION 3.06. Parent 34 Act Reports...........................................8
SECTION 3.07. Litigation......................................................8
SECTION 3.08. Environmental Matters...........................................8
SECTION 3.09. Licenses and Permits............................................9
SECTION 3.10. Financial Statements............................................9
SECTION 3.11. Investment Company Act.........................................10
SECTION 3.12. Registration Obligations.......................................10
SECTION 3.13. No Violation of Regulation G, T, U or X........................10
SECTION 3.14. No Ratings Decline.............................................10
SECTION 3.15. No Material Change.............................................10
SECTION 3.16. No Solicitation................................................11
SECTION 3.17. Labor Matters..................................................11
SECTION 3.18. Accounting Controls............................................11
SECTION 3.19. Intellectual Property..........................................11
SECTION 3.20. Indenture......................................................12
SECTION 3.21. No Registration................................................12
SECTION 3.22. Certificates...................................................12
<PAGE>
PAGE
----
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
SECTION 4.01. Corporate/Partnership Existence and Power......................12
SECTION 4.02. Corporate/Partnership Authorization............................12
SECTION 4.03. Governmental Authorization.....................................12
SECTION 4.04. Noncontravention...............................................13
SECTION 4.05. Purchase for Investment........................................13
SECTION 4.06. Litigation.....................................................13
SECTION 4.07. Finders' Fees..................................................13
ARTICLE 5
COVENANTS OF THE PARTIES
SECTION 5.01. Best Efforts; Further Assurances...............................14
SECTION 5.02. Certain Filings................................................14
SECTION 5.03. Public Announcements...........................................14
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of each Party........................14
SECTION 6.02. Conditions to Obligation of the Buyers.........................15
SECTION 6.03. Conditions to Obligation of the Issuers........................16
ARTICLE 7
SURVIVAL; INDEMNIFICATION
SECTION 7.01. Survival.......................................................17
SECTION 7.02. Indemnification................................................18
SECTION 7.03. Procedures.....................................................18
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices........................................................19
SECTION 8.02. Amendments and Waivers.........................................20
SECTION 8.03. Expenses.......................................................20
SECTION 8.04. Successors and Assigns.........................................20
SECTION 8.05. Governing Law..................................................20
SECTION 8.06. Jurisdiction...................................................21
ii
<PAGE>
SECTION 8.07. WAIVER OF JURY TRIAL...........................................21
SECTION 8.08. Counterparts; Third Party Beneficiaries........................21
SECTION 8.09. Appointment of Agent...........................................21
SECTION 8.10. Entire Agreement...............................................22
SECTION 8.11. Captions.......................................................22
SECTION 8.12. Enforcement of Voting Rights...................................22
EXHIBITS
Exhibit A -- Form of Notes, including attached Form of Indenture
Exhibit B -- Form of Registration Rights Agreement
Exhibit C -- Form of Warrants
SCHEDULE
Schedule 3.05 -- Subsidiaries
<PAGE>
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of December 22, 1999 by and among 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., DLJMB Funding II, Inc., DLJ Millennium Partners, L.P., DLJ Millennium
Partners-A, L.P., DLJ EAB Partners, L.P., DLJ ESC II L.P. and DLJ First ESC,
L.P., (each of the foregoing, a "DLJ Buyer", and collectively, the "DLJ Buyers"
and sometimes referred to as the "Buyers"), Thermadyne Holdings Corporation, a
Delaware corporation ("Parent"), and Thermadyne Mfg. LLC, a Delaware limited
liability company and a wholly-owned subsidiary of Parent (the "Company").
W I T N E S S E T H :
WHEREAS, the Buyers desire to purchase, and Parent and the Company desire
to issue and sell to the Buyers, the Securities (as defined below), upon the
terms and subject to the conditions hereinafter set forth.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. 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; provided that no securityholder of Parent shall be deemed an Affiliate
of any other securityholder of Parent or any Subsidiary solely by reason of any
investment in Parent. For the purpose of this definition, the term "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean 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 or by contract or otherwise.
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"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Common Stock, par value $0.01 per share, of
Parent.
"Credit Agreement" means the Credit Agreement dated as of May 22, 1998
among the Company, Comweld Group Pty. Ltd., GenSet S.p.A., Thermadyne Welding
Products Canada Limited, the various financial institutions party thereto from
time to time, DLJ Capital Funding, Inc., as syndication agent, Societe
Generale, as documentation agent and ABN AMRO Bank N.V., as administrative
agent, as amended from time to time, together with the related documents
thereto (including, without limitation, the term loans, revolving loans and
swingline loans thereunder, the letters of credit issued pursuant thereto and
any guarantees and security documents).
"Federal Tax" means any Tax imposed under Subtitle A of the Code.
"Final Determination" shall mean (i) any final determination of liability
in respect of a Tax that, under applicable law, is not subject to further
appeal, review or modification through proceedings or otherwise (including the
expiration of a statute of limitations or a period for the filing of claims for
refunds, amended returns or appeals from adverse determinations), including a
"determination" as defined in Section 1313(a) of the Code or execution of an
Internal Revenue Service Form 870AD or (ii) the payment of Tax by the Buyers,
Parent or a Subsidiary, whichever is responsible for payment of such Tax under
applicable law, with respect to any item disallowed or adjusted by a Taxing
Authority, provided that such responsible party determines that no action
should be taken to recoup such payment and the other party agrees.
"Indenture" means the Indenture relating to the Notes, substantially in
the form attached to Exhibit A hereto.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or asset. For the purposes of this Agreement,
a Person shall be deemed to own subject to a Lien any property or asset which
it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such property or asset.
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"Material Adverse Effect" means a material adverse effect on the condition
(financial or otherwise), business, assets or results of operations of Parent
and the Subsidiaries, taken as whole.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"Notes" means the Junior Subordinated Notes of the Company due 2009, a
specimen certificate substantially the form of which is attached hereto as
Exhibit A.
"Parent 1934 Act Reports" means the reports filed by Parent in compliance
with the 1934 Act during Parent's most recent fiscal year and, in any event,
Parent's annual report on Form 10-K for the year ended December 31, 1998.
"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.
"Registration Rights Agreement" means the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit B.
"Securities" means, collectively, the Notes and the Warrants.
"Subsidiary" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by Parent (including, without limitation, the
Company).
"Tax" means (i) any tax, governmental fee or other like assessment or
charge of any kind whatsoever (including, but not limited to, withholding on
amounts paid to or by any Person), together with any interest, penalty,
addition to tax or additional amount imposed by any governmental authority (a
"Taxing Authority") responsible for the imposition of any such tax (domestic or
foreign), (ii) in the case of Parent or any Subsidiary, liability for the
payment of any amount of the type described in clause (i) as a result of being
or having been before the Closing Date a member of an affiliated, consolidated,
combined or unitary group, or a party to any agreement or arrangement, as a
result of which liability of Parent or any Subsidiary to a Taxing Authority is
determined or taken
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into account with reference to the liability of any other Person, and (iii)
liability of Parent or any Subsidiary for the payment of any amount as a result
of being party to any Tax Sharing Agreement or with respect to the payment of
any amount of the type described in (i) or (ii) as a result of any existing
express or implied obligation (including, but not limited to, an
indemnification obligation).
"Tax Sharing Agreements" means all existing agreements or arrangements
(whether or not written) binding Parent or any Subsidiary that provide for the
allocation, apportionment, sharing or assignment of any Tax liability or
benefit, or the transfer or assignment of income, revenues, receipts, or gains
for the principal purpose of determining any person's Tax liability.
"Transaction Documents" means this Agreement, the Notes, the Warrants, the
Indenture and the Registration Rights Agreement.
"Transactions" means the transactions contemplated by the Transaction
Documents.
"Warrants" means warrants to purchase an aggregate of 436,965 shares of
Common Stock, a specimen certificate substantially the form of which is
attached hereto as Exhibit C.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Authorizations 3.09
Buyers recitals
Closing 2.02
Company recitals
Damages 7.02
DLJ Buyers recitals
Environmental Laws 3.08(a)
ERISA 3.08(a)
Indemnified Party 7.03
Indemnifying Party 7.03
intellectual property 3.19
Issuer 2.01
Parent recitals
Parent Securities 3.04
Purchase Price 2.01
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ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Parent and the Company (each, an "Issuer") agree
to issue and sell to each Buyer, and each Buyer agrees, severally and not
jointly, to purchase from the applicable Issuer at the Closing such Notes and
Warrants as are set forth opposite such Buyer's name on Schedule 2.01. The
aggregate purchase price (the "Purchase Price") for the Notes and the Warrants
applicable to each Buyer is set forth opposite such Buyer's name on Schedule
2.01. The aggregate Purchase Price payable by all Buyers shall be paid at
Closing as provided in Section 2.02.
SECTION 2.02. 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 after
satisfaction of the conditions set forth in Article 6, or at such other time or
place as the parties hereto may agree. At the Closing:
(a) Each Buyer shall deliver to the applicable Issuer the amounts set
forth opposite its name on Schedule 2.01 with respect to the Notes and the
Warrants to be purchased by it, in immediately available funds by wire transfer
to an account of the applicable Issuer designated by such Issuer, by notice to
the Buyers, not later than two business days prior to the Closing Date.
(b) The applicable Issuer shall deliver to each Buyer duly-executed Notes
and Warrants, as the case may be, in the amounts set forth opposite such
Buyer's name on Schedule 2.01.
SECTION 2.03. Purchase Price Allocation. The Issuers and the Buyers agree
that the Purchase Price shall be allocated to the Notes and the Warrants for
U.S. federal income tax purposes in a manner to be mutually agreed by the
Issuers and the Buyers.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
Parent and the Company jointly and severally represent and warrant to the
Buyers as of the Closing Date that:
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SECTION 3.01. Corporate Existence and Power. (a) Each Issuer is a
corporation duly incorporated or a limited liability company duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be, and has all requisite power
and authority to carry on its business as now conducted. Each Issuer is duly
qualified to do business as a foreign corporation or foreign limited liability
company, as the case may be, and is in good standing in each jurisdiction where
such qualification is necessary, except for those jurisdictions where failure
to be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect.
(b) All equity interests of each of the Issuers have been duly authorized
and validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights.
(c) Neither Issuer nor any of its subsidiaries is in violation of its
respective organizational documents or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which such
Issuer or any of its subsidiaries is a party or by which such Issuer or any of
its subsidiaries or their respective property is bound, except for such
defaults which, singly or in the aggregate, would not have a Material Adverse
Effect.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by each Issuer of the Transaction Documents to which such Issuer is
a party and the consummation of the transactions contemplated thereby are
within such Issuer's powers and have been duly authorized by all necessary
action on the part of such Issuer. This Agreement constitutes (and, when
executed and delivered, each other Transaction Document to which each Issuer is
a party will constitute) a valid and binding agreement of each Issuer,
enforceable against each of the Issuers in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability and (iii) rights to indemnity and
contribution thereunder may be limited by applicable law.
SECTION 3.03. Noncontravention. The execution, delivery and performance by
each Issuer of the Transaction Documents to which such Issuer is a party and
the consummation of the transactions contemplated thereby do not and will not
(i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
may be required under federal securities or Blue Sky laws of the various states
or have been or will be obtained prior to the Closing Date), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default
under, (A) the charter or
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bylaws or limited liability company agreement of such Issuer or any of its
subsidiaries or (B) any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to such Issuer and its subsidiaries,
taken as a whole, to which such Issuer or any of its subsidiaries is a party or
by which such Issuer or any of its subsidiaries or their respective property is
bound, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over such issuer any of its subsidiaries or their
respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which such Issuer or any of its subsidiaries is a party or by which such Issuer
or any of its subsidiaries or their respective property is bound, or (v) result
in the termination, suspension or revocation of any Authorization (as defined
below) of such Issuer or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization, except, in
the case of clauses (i), (ii)(B), (iv) and (v), as would not, singly or in the
aggregate, have a Material Adverse Effect.
SECTION 3.04. Capitalization; Indebtedness. (a) The authorized capital
stock of Parent consists of 30,000,000 shares of Common Stock and 15,000,000
shares of Preferred Stock. After giving effect to the Closing, there will be
outstanding (i) 3,590,326 shares of Common Stock and 2,000,000 shares of
Preferred Stock, (ii) options to purchase 342,356 shares of Common Stock, (iii)
the rights associated with Parent's rights plan in place as of the date hereof
and (iv) the Warrants.
(b) All outstanding shares of capital stock of Parent have been duly
authorized and validly issued and are fully paid and non-assessable. Other than
the Parent Securities, there are no outstanding (i) shares of capital stock or
voting securities of Parent, (ii) securities of Parent convertible into or
exchangeable for shares of capital stock or voting securities of Parent or
(iii) options or other rights to acquire from Parent, or other obligation of
Parent to issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of Parent (the
items in clauses 3.04(b)(i), 3.04(b)(ii), 3.04(b)(iii) and 3.04(b)(iv) being
referred to collectively as the "Parent Securities"). There are no outstanding
obligations of Parent or any Subsidiary to repurchase, redeem or otherwise
acquire any Parent Securities, except the obligation of Parent to redeem its
Preferred Stock in accordance with the terms thereof.
(c) When executed and delivered pursuant to this Agreement, the Notes and
the Warrants will constitute valid and binding obligations of the applicable
Issuer. Upon the consummation of the Closing, the shares of Common Stock
issuable upon the exercise of the Warrants will have been duly authorized and
reserved for issuance upon exercise of the Warrants and, when issued upon such
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exercise and payment of the exercise price thereof, will be validly issued,
fully paid and non-assessable, and the issuance of such shares is not subject
to any preemptive or similar rights.
SECTION 3.05. Subsidiaries. (a) The entities listed on Schedule 3.05
hereto are the only subsidiaries, direct or indirect, of Parent. Except as
otherwise set forth on such Schedule, all of the outstanding equity interests
of each of Parent's subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, as applicable, and are owned by Parent,
directly or indirectly through one or more subsidiaries, free and clear of any
Lien.
SECTION 3.06. Parent 34 Act Reports. Parent has made all required filings
under the 1934 Act. All of the information contained in the Parent 34 Act
Reports is correct in all material respects as of the date thereof and not
misleading.
SECTION 3.07. Litigation. (a) No action has been taken and no law,
statute, rule or regulation or order has been enacted, adopted or issued by any
governmental agency or body which prevents the execution, delivery and
performance of any of the Transaction Documents, or suspends the sale of the
Notes or the Warrants in any jurisdiction and no injunction, restraining order
or other order or relief of any nature by a federal or state court or other
tribunal of competent jurisdiction has been issued with respect to any Issuer
which would prevent or suspend the issuance or sale of the Notes or the
Warrants in any jurisdiction.
(b) There are no legal or governmental proceedings pending or threatened
to which either Issuer or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject, which might
result, singly or in the aggregate, in a Material Adverse Effect.
SECTION 3.08. Environmental Matters. (a) Neither Issuer nor any of its
subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(b) Except as otherwise set forth in the Parent 1934 Act Reports, there
are no costs or liabilities associated with Environmental Laws (including,
without
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limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
SECTION 3.09. Licenses and Permits. Each Issuer and its subsidiaries has
such permits, licenses, consents, exemptions, franchises, authorizations and
other approvals (each, an "Authorization") of, and has made all filings with
and notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease,
license and operate its respective properties and to conduct its business,
except where the failure to have any such Authorization or to make any such
filing or notice would not, singly or in the aggregate, have a Material Adverse
Effect. Each such Authorization is valid and in full force and effect and each
Issuer and its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to such Issuer or
any of its subsidiaries; except, in each case, where such failure to be valid
and in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
SECTION 3.10. Financial Statements. The historical financial statements,
together with related notes forming part of the Parent 34 Act Reports (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of Parent and
its subsidiaries on the basis stated in the Parent 34 Act Reports at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Parent 34 Act Reports (and
any amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of Parent.
SECTION 3.11. Investment Company Act. None of the Issuers is or, after
giving effect to the offering and sale of the Securities and the application of
the
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net proceeds thereof will be, and "investment company," as such term is defined
in the Investment Company Act of 1940 as amended.
SECTION 3.12. Registration Obligations. There are no contracts, agreements
or understanding between any Issuer and any person granting such person the
right to require such Issuer to file a registration statement under the 1933
Act with respect to any securities of such Issuer or to require such Issuer to
include such securities with the securities registered pursuant to any Issuer
registration statement, except as contemplated in the Registration Rights
Agreement and the Investors' Agreement dated as of May 22, 1998 among Parent
and the investors and stockholders party thereto.
SECTION 3.13. No Violation of Regulation G, T, U or X. Neither Issuer nor
any agent thereof acting on the behalf of them has taken, and none of them will
take, any action that may cause the Transaction Agreements or the issuance or
sale of the Securities to violate Regulation G (12 C.F.R. Part 207), Regulation
T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
SECTION 3.14. No Ratings Decline. No "nationally recognized statistical
rating organization" (as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act (i) has imposed (or has informed any Issuer that it is
considering imposing) any condition (financial or otherwise) on such Issuer's
retaining any rating assigned to such Issuer or any securities of such Issuer
or (ii) has indicated to such Issuer that it is considering (A) the downgrading
suspension, or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so assigned or (B)
any change in the outlook for any rating of such Issuer or any securities of
such Issuer.
SECTION 3.15. No Material Change. Since the respective dates as of which
information is given in the Parent 34 Act Reports other than as set forth in
the Parent 34 Act Reports (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the earnings,
business, management or operations of Parent and its subsidiaries, taken as a
whole, (ii) there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or in the
long-term debt of Parent or any of its subsidiaries and (iii) neither Parent
nor any of its subsidiaries has incurred any material liability or obligation,
direct or contingent.
SECTION 3.16. No Solicitation. No form of general solicitation or general
advertising (as defined in Regulation D under the 1933 Act) was used by any
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Issuer or any of its representatives (other than the DLJ Buyers, as to whom the
Issuers make no representation) in connection with the offer and sale of the
Securities contemplated here, including, but not limited to, articles, notices
or other communications published in any newspaper, magazine or similar medium
or broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Notes or the Warrants have been issued and
sold by any Issuer within the six-month period immediately prior to the date
hereof.
SECTION 3.17. Labor Matters. There is no (i) material unfair labor
practice complaint, grievance or arbitration proceeding pending or threatened
against either Issuer before the National Labor Relations Board or any state or
local labor relations board or (ii) strike, labor dispute, slowdown or stoppage
pending or threatened against either Issuer, except for such actions specified
in clause (i) or (ii) above, which, singly or in the aggregate, would not have
a Material Adverse Effect. To the best of the Issuers' knowledge, no collective
bargaining organizing activities are taking place with respect to either
Issuer, which, singly or in the aggregate, would have a Material Adverse
Effect.
SECTION 3.18. Accounting Controls. Each Issuer maintains a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
SECTION 3.19. Intellectual Property. Except as otherwise set forth in the
Parent 34 Act Reports, Parent and its subsidiaries own or possess, or can
acquire on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("intellectual property") currently
employed by them in connection with the business now operated by them, except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a Material
Adverse Effect; and, to the best of the Issuers' knowledge, neither Parent nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of such intellectual
property which, singly or in the aggregate,
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if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
SECTION 3.20. Indenture. Prior to the effectiveness of any registration
statement relating to the Notes, the Indenture is not required to be qualified
under the TIA.
SECTION 3.21. No Registration. No registration under the 1933 Act of the
Securities is required for the sale of the Securities to the Buyers as
contemplated hereby or for exempt resales assuming the accuracy of the Buyers'
representations and warranties and agreements set forth in Article 4.
SECTION 3.22. Certificates. Each certificate signed by an officer of any
Issuer and delivered to the Buyers or counsel for the Buyers shall be deemed to
be a representation and warranty by such Issuer to the Buyers as to the matters
covered thereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each Buyer, severally as to itself and not jointly, represents and
warrants to Parent and the Company as of the Closing Date that:
SECTION 4.01. Corporate/Partnership Existence and Power. Such Buyer is a
partnership duly organized or a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of organization.
SECTION 4.02. Corporate/Partnership Authorization. The execution, delivery
and performance by such Buyer of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated thereby are within
the powers (corporate, partnership or otherwise) of such Buyer and have been
duly authorized by all necessary action on the part of such Buyer. This
Agreement constitutes (and, when executed and delivered, each other Transaction
Document to which such Buyer is a party will constitute) a valid and binding
agreement of such Buyer.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of the Transaction Documents to which it is a party
and the consummation of the transactions contemplated thereby require no action
by or in respect of, or filing with, any governmental body, agency or official
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(other than any filing pursuant to the HSR Act that may be required by a holder
of the Warrants in connection with the exercise of the Warrants).
SECTION 4.04. Noncontravention. The execution, delivery and performance by
such Buyer of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated thereby do not and will not (i)
violate the partnership agreement or certificate of incorporation or bylaws, as
the case may be, of such Buyer, (ii) violate any material indenture, agreement
or mortgage to which such Buyer is a party or by which such Buyer is bound, or
(iii) assuming compliance with the matters referred to in Section 4.03, violate
any applicable material law, rule, regulation, judgment, injunction, order or
decree or require any material consent of any other Person.
SECTION 4.05. Purchase for Investment. Such Buyer acknowledges that the
Securities have not been registered under the 1933 Act or any state securities
laws and that the purchase and sale of the Securities contemplated hereby is to
be effected pursuant to an exemption from the registration requirements imposed
by such laws. In this regard, such Buyer is purchasing the Securities to be
purchased by it hereunder for its own account and not with a view to, or for
sale in connection with, any distribution thereof in violation of the 1933 Act.
Such Buyer (either alone or together with its advisors) is an "accredited
investor" (as defined in Regulation D under the 1933 Act), has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in such Securities and is
capable of bearing the economic risks of such investment. Such Buyer has been
given the opportunity to ask questions of, and receive answers from, management
of Parent concerning its investment in the Issuers.
SECTION 4.06. 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.
SECTION 4.07. Finders' Fees. There is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of such Buyer who might be entitled to any fee or commission from such
Buyer or from Parent or any of its Affiliates upon consummation of the
Transactions.
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ARTICLE 5
COVENANTS OF THE PARTIES
Each party hereto agrees that:
SECTION 5.01. Best Efforts; Further Assurances. Subject to the terms and
conditions of this Agreement, such party will use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under applicable laws and regulations to consummate the
Transactions. Such party agrees to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary or desirable in order to consummate or implement expeditiously
the Transactions.
SECTION 5.02. Certain Filings. The parties hereto shall cooperate with one
another (i) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the consummation of the
Transactions and (ii) in taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers.
SECTION 5.03. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to any Transaction Document or the Transactions and, except as may be
required by applicable law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of each Party. The obligations of
each party to consummate the Closing are subject to the satisfaction of the
following conditions:
14
<PAGE>
(a) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the
Closing.
(b) No proceeding challenging this Agreement or any of the
Transactions or seeking to prohibit, alter, prevent or materially delay
the Closing shall have been instituted by any Person before any court,
arbitrator or governmental body, agency or official and be pending, where,
in the reasonable judgment of the Buyers, on the one hand, or the Issuers,
on the other hand, there is a significant possibility of a determination
in accordance with the plaintiff's demand.
SECTION 6.02. Conditions to Obligation of the Buyers. The obligation of
the Buyers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) The Issuers shall have performed in all material respects all
of their obligations hereunder required to be performed by them on or
prior to the Closing Date and (ii) the representations and warranties of
the Issuers contained in this Agreement and in any certificate or other
writing delivered by either of them pursuant hereto shall be true in all
material respects at and as of the Closing Date (it being understood that
where any such representation and warranty already includes a material
adverse effect or materiality exception, no further materiality exception
is to be permitted by this Section 6.02(a)(ii)).
(b) There shall not be threatened, instituted or pending any action
or proceeding by any Person before any court or governmental authority or
agency, domestic or foreign, (i) seeking to restrain, prohibit or
otherwise interfere with the ownership or operation by Parent or any of
its Affiliates of all or any material portion of the business or assets of
Parent or any Subsidiary, or to compel Parent or any of its Affiliates to
dispose of all or any material portion of such businesses or assets, (ii)
seeking to impose or confirm limitations on the ability of any Buyer or
any of its Affiliates effectively to exercise full rights of ownership of
its Securities or (iii) seeking to require divestiture by any Buyer or any
of its Affiliates of any of its Securities.
(c) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed (where, in the reasonable
judgment of the Buyers, there is a significant possibility that such
proposal will be enacted), enacted, enforced, promulgated, issued or
deemed applicable to the purchase of their Securities, by any court,
government or
15
<PAGE>
governmental authority or agency, domestic or foreign, that, in the
reasonable judgment of any Buyer has a significant possibility of,
directly or indirectly, resulting in any of the consequences referred to
in clauses 6.02(b)(i) through 6.02(b)(iii) above.
(d) Each of the Transaction Documents (other than the Indenture)
shall have been executed and delivered by the parties thereto other than
the Buyers, the conditions to closing of each of the parties to the
Transaction Documents (other than the Buyers) as set forth in such
Transaction Documents shall have been satisfied or waived and, assuming
due execution and delivery by the Buyers, each such Transaction Document
shall be in full force and effect.
(e) The costs and expenses of the Buyers referred to in Section 8.03,
shall have been paid by the Issuers.
(f) The Buyers shall have received an opinion or opinions of Weil,
Gotshal & Manges (or other counsel reasonably satisfactory to the Buyers),
counsel to the Issuers, dated the Closing Date, in form and substance
reasonably satisfactory to the Buyers. In rendering such opinion, such
counsel may rely upon certificates of public officers and, as to matters
of fact, upon certificates of officers of the Issuers, copies of which
certificates shall be contemporaneously delivered to the Buyers.
(g) The Buyers shall have received all documents they may reasonably
request relating to the existence of each Issuer and the authority of each
Issuer for each of the Transaction Documents, all in form and substance
reasonably satisfactory to the Buyers.
SECTION 6.03. Conditions to Obligation of the Issuers. The obligation of
the Issuers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) The Buyers shall have performed in all material respects all
of their obligations hereunder required to be performed by them at or
prior to the Closing Date and (ii) the representations and warranties of
the Buyers contained in this Agreement and in any certificate or other
writing delivered by the Buyers pursuant hereto shall be true in all
material respects at and as of the Closing Date (it being understood that
where any such representation and warranty already includes a material
adverse effect or materiality exception, no further materiality exception
is to be permitted by this Section 6.03(a)(ii)).
16
<PAGE>
(b) There shall not be threatened, instituted or pending any action
or proceeding by any Person before any court or governmental authority or
agency, domestic or foreign, seeking to restrain or prohibit the ownership
or operation by Parent or its Affiliates of all or any material portion of
the business or assets of Parent or any Subsidiary, or to compel Parent or
its Affiliates to dispose of all or any material portion of such
businesses or assets.
(c) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed (where, in the reasonable
judgment of the Issuers, there is a significant possibility that such
proposal will be enacted), enacted, enforced, promulgated, issued or
deemed applicable to the sale of Securities, by any court, government or
governmental authority or agency, domestic or foreign that, in the
reasonable judgment of the Issuers has a significant possibility of,
directly or indirectly, resulting in any of the consequences referred to
in Section 6.03(b) above.
(d) Each of the Transaction Documents (other than the Indenture)
shall have been executed and delivered by the parties thereto other than
the Issuers and, assuming due execution and delivery by the Issuers, each
such Transaction Document shall be in full force and effect.
(e) The Issuers shall have received all documents they may reasonably
request relating to the existence of the Buyers and the authority of such
Persons for each of the Transaction Documents, all in form and substance
reasonably satisfactory to the Issuers.
ARTICLE 7
SURVIVAL; INDEMNIFICATION
SECTION 7.01. Survival. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection
herewith shall survive the Closing until eighteen months after the Closing
Date; provided that the representations and warranties contained in Sections
3.04, 3.05, 3.08, and the covenants and agreements set forth in Articles 7 and
8 shall survive indefinitely. Notwithstanding the preceding sentence, any
covenant, agreement, 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
17
<PAGE>
such right of indemnity shall have been given to the party against whom such
indemnity may be sought prior to such time.
SECTION 7.02. Indemnification. (a) Parent and the Company, without
duplication, hereby jointly and severally indemnify each Buyer against and
agree to hold such Buyer 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 such Buyer arising out of
any misrepresentation or breach of warranty, covenant or agreement made or to
be performed by Parent or the Company pursuant to this Agreement.
(b) Each Buyer, severally but not jointly, hereby indemnifies Parent and
the Company, without duplication, against and agrees to hold each of them
harmless from any and all Damages incurred or suffered by them arising out of
any misrepresentation or breach of warranty, covenant or agreement made or to
be performed by such Buyer pursuant to this Agreement.
(c) Any amount paid by Parent, any Subsidiary or the Buyers under Article
7 will be treated as an adjustment to the Purchase Price unless a Final
Determination causes any such amount not to constitute an adjustment to the
Purchase Price for Federal Tax purposes. In the event of such a Final
Determination, the Buyers, Parent or any Subsidiary, as the case may be, shall
pay an amount that reflects the hypothetical Tax consequences of the receipt or
accrual of such payment, using the maximum statutory rate (or rates, in the
case of an item that affects more than one Tax) applicable to the recipient of
such payment for the relevant year, reflecting for example, the effect of
deductions available for interest paid or accrued and for Taxes such as state
and local income Taxes.
SECTION 7.03. Procedures. The party seeking indemnification under Section
7.02 (the "Indemnified Party") agrees to give prompt notice to the party
against whom indemnity is sought (the "Indemnifying Party") of the assertion of
any claim, or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought under such Section. The Indemnifying Party may at
the request of the Indemnified Party participate in and control the defense of
any such suit, action or proceeding at its own expense. The Indemnifying Party
shall not be liable under Section 7.02 for any settlement effected without its
consent of any claim, litigation or proceeding in respect of which indemnity
may be sought hereunder.
18
<PAGE>
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to the DLJ Buyers, to:
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, NY 10172
Attention: William F. Dawson, Jr.
Fax: (212) 892-7272
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Richard D. Truesdell, Jr.
Fax: (212) 450-4800
if to the Issuers, to:
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Attention: Jim Tate or Stephanie Josephson
Fax: (314) 746-2374
(314) 746-2327
with a copy to:
R. Scott Cohen, Esq.
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, TX 75201-6950
Fax: (214) 746-7777
19
<PAGE>
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 8.02. 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, provided that the DLJ Buyers agree that DLJ Merchant Banking
Partners II, L.P. may agree to an amendment or waiver on behalf of, and as
agent for, all DLJ Buyers.
(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 8.03. Expenses. All costs and expenses incurred in connection with
the Transaction Documents shall be paid by the party incurring such cost or
expense; provided that (i) any costs and expenses (including fees and expenses
of counsel) of each Buyer shall be reimbursed by the Issuers at the Closing and
(ii) all transfer, documentary, sales, use, stamp, registration, value added
and other such Taxes and fees (including any penalties and interest) incurred
in connection with transactions contemplated by this Agreement shall be paid by
Parent when due, and Parent will, at its own expense, file all necessary Tax
returns and other documentation with respect to all such Taxes and fees, and,
if required by applicable law, the Buyers will join in the execution of any
such Tax returns and other documentation.
SECTION 8.04. 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 8.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard
to the conflicts of law rules of such state.
20
<PAGE>
SECTION 8.06. Jurisdiction. Except as otherwise expressly provided in this
Agreement, 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 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 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 8.07. 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 8.08. 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. No provision of this Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
SECTION 8.09. Appointment of Agent. Each of the DLJ Buyers hereby
irrevocably constitutes and appoints DLJ Merchant Banking Partners II, L.P. as
its agent and true and lawful attorney in fact with full power and discretion,
in the name of and for and on behalf of each of the DLJ Buyers, in connection
with all matters arising from, contemplated by or relating to the Transaction
Documents. The powers of DLJ Merchant Banking Partners II, L.P. include,
without limitation, the power to represent each of the DLJ Buyers with respect
to all aspects of the Transaction Documents, which power shall include, without
limitation, the power to (i) waive any conditions of the Transaction Documents,
(ii) amend the Transaction Documents in any respect, (iii) receive notices or
other communications, (iv) deliver any notices, certificates or other documents
required and (v) take all such other action and to do all such other things as
DLJ Merchant Banking Partners II, L.P. deems necessary or advisable with
respect to the Transaction Documents. The Issuers shall have the right to rely
upon the acts
21
<PAGE>
taken or omitted to be taken by DLJ Merchant Banking Partners II, L.P. on
behalf of the DLJ Buyers, and shall have no duty to inquire as to the acts and
omissions of DLJ Merchant Banking Partners II, L.P.
SECTION 8.10. Entire Agreement. The Transaction Documents constitute the
entire agreement between the parties with respect to the subject matter of the
Transaction Documents and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter
of the Transaction Documents.
SECTION 8.11. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 8.12. Enforcement of Voting Rights. In the event that after
December 15, 2004 the Company does not pay interest in cash on four consecutive
Interest Payment Dates (as defined in the Indenture) or on six Interest Payment
Dates, each of the DLJ Buyers agrees to cause, to the extent such DLJ Buyers
and their affiliates shall have the power to cause, two people selected by the
Holders (as defined in the Indenture) of a majority of the Accreted Value (as
defined in the Indenture) of the Notes, voting as a single class, to be elected
to the Board of Directors of Parent. Further, each of the DLJ Buyers agrees to
cause, to the extent such DLJ Buyers shall have the power to cause, such
directors to serve on the Board of Directors of Parent until such time as the
Company pays interest in cash on four consecutive Interest Payment Dates
following their election.
22
<PAGE>
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:
THERMADYNE MFG. LLC
By:
------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By:
------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A,
L.P.
By:
------------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By:
------------------------------------
Name:
Title:
23
<PAGE>
DLJ DIVERSIFIED PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By:
------------------------------------
Name:
Title:
DLJM FUNDING II, INC.
By:
------------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By:
------------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
24
<PAGE>
DLJ ESC II L.P.
By:
------------------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
By:
------------------------------------
Name:
Title:
25
<PAGE>
Schedule 2.01
Notes to be Purchased from the Company
and
Warrants to be Purchased from Parent
<TABLE>
Buyers Securities Purchase Price
- ----------------------------------------------------------------------------------------
<S> <C> <C>
DLJ Merchant Banking (1) $15,748,000 Initial Accreted $15,748,000
Partners II, L.P. Value of Notes
(2) Warrants to purchase 275,255
shares of Common Stock
DLJ Merchant Banking (1) $627,000 Initial Accreted $627,000
Partners II-A, L.P. Value of Notes
(2) Warrants to purchase 10,962
shares of Common Stock
DLJ Offshore Partners (1) $774,000 Initial Accreted $774,000
II, C.V. Value of Notes
(2) Warrants to purchase 13,536
shares of Common Stock
DLJ Diversified (1) $921,000 Initial Accreted $921,000
Partners, L.P. Value of Notes
(2) Warrants to purchase 16,093
shares of Common Stock
DLJ Diversified (1) $342,000 Initial Accreted $342,000
Partners-A, L.P. Value of Notes
(2) Warrants to purchase 5,976
shares of Common Stock
DLJMB Funding II, Inc. (1) $3,212,000 Initial Accreted $3,212,000
Value of Notes
(2) Warrants to purchase 56,152
shares of Common Stock
DLJ Millennium (1) $255,000 Initial Accreted $255,000
Partners, L.P. Value of Notes
(2) Warrants to purchase 4,451
shares of Common Stock
<PAGE>
Buyers Securities Purchase Price
- ----------------------------------------------------------------------------------------
<S> <C> <C>
DLJ Millennium (1) $50,000 Initial Accreted Value $50,000
Partners-A, L.P. amount at maturity of Notes
(2) Warrants to purchase 868
shares of Common Stock
DLJ EAB Partners, L.P. (1) $71,000 Initial Accreted Value $71,000
amount at maturity of Notes
(2) Warrants to purchase 1,236
shares of Common Stock
DLJ ESC II L.P. (1) $2,970,000 Initial Accreted $2,970,000
Value of Notes
(2) Warrants to purchase 51,906
shares of Common Stock
DLJ First ESC, L.P. (1) $30,000 Initial Accreted Value $30,000
of Notes
(2) Warrants to purchase 530
shares of Common Stock
=======================================================================================
TOTALS 1) $25,000,000 Initial Accreted $25,000,000
Value of Notes
(2) Warrants to purchase 436,965
shares of Common Stock
- ----------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
Schedule 3.05
Name Jurisdiction of Organization
- ---- ----------------------------
Arcair Stoody Europe S.A. Belgium
BBM Srl* Italy
C&G Systems Holding, Inc. Delaware
C&G Systems, Inc. Ililnois
Canadian Cylinder Company Canada
Comet Property Holdings, Inc. Philippines
Comweld Group Pty. Ltd Australia
Comweld Malaysia SDN BHD Malaysia
Comweld Philippines Inc. Philippines
Coyne Natural Gas Systems, Inc. Missouri
Duxtech Pty. Ltd. Australia
Genset SpA Italy
Marison Cylinder Company Delaware
MECO Holding Company Delaware
Metalservice SA Chile
Modern Engineering Company, Inc. Missouri
Ocim Srl* Italy
Palco Trading Company* Dubai
Philippine Welding Equipment Inc.* Philippines
PT Thermadyne Utama Indonesia Indonesia
PT Comweld Indonesia Indonesia
Quetack Pty. Ltd Australia
Quetala Pty. Ltd. Australia
Quetala Unit Trust Australia
Soltec SA Chile
Stoody Company Delaware
TAG Realty, Inc. Texas
Tecmo Srl Italy
Tec. Mo. Cut Srl* Italy
Tec. Mo. Control Srl* Italy
THC Italia Srl Italy
Thermadyne Asia/Pacific PTE Ltd. Singapore
Thermadyne Asia SDN BHD Malaysia
3
<PAGE>
Name Jurisdiction of Organization
- ---- ----------------------------
Thermadyne Australia Pty. Ltd. Australia
Thermadyne Brazil Holdings, Ltd. Cayman Islands
Thermadyne Capital Corp. Delaware
Thermadyne Chile Holdings, Ltd. Cayman Islands
Thermadyne Cylinder Company California
Thermadyne de Brasil S.C. Ltda Brazil
Thermadyne de Mexico S.A. de C.V. Mexico
Thermadyne Foreign Sales Corporation Barbados
Thermadyne Hong Kong Limited Hong Kong
Thermadyne Industries, Inc. Delaware
Thermadyne Industries Limited United Kingdom
Thermadyne International Corp. Delaware
Thermadyne Italia Srl Italy
Thermadyne Japan, K.K. Japan
Thermadyne Korea, Limited Korea
Thermadyne Receivables, Inc. Delaware
Thermadyne South America Holdings, Ltd. Cayman Islands
Thermadyne Thailand Co. Ltd.* Thailand
Thermadyne Victor Ltda. Brazil
Thermadyne Welding Products Canada, Ltd. Canada
Thermal Arc, Inc. Delaware
Thermal Arc Philippines, Inc. Philippines
Thermal Dynamics Corp. Delaware
Tweco Products, Inc. Delaware
Victor Coyne International, Inc. Delaware
Victor Equipment Company Delaware
Victor Gas Systems, Inc. Delaware
Wichita Warehouse Corp. Kansas
100% of the stock of all domestic subsidiaries are pledged pursuant to the
Credit Agreement.
65% of the stock of all foreign subsidiaries are pledged pursuant to the Credit
Agreement.
*These subsidiaries are not 100% owned.
4
<PAGE>
EXHIBIT A
THIS NOTE IS SUBJECT TO, AND IS TRANSFERABLE ONLY UPON COMPLIANCE
WITH, THE PROVISIONS OF A SUBSCRIPTION AGREEMENT DATED AS OF DECEMBER 22,
1999. COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICE OF
THE COMPANY AT 101 SOUTH HANLEY ROAD, ST. LOUIS, MISSOURI 63105.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE U.S. OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE U.S. TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE COMPANY), AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
ACCRETED VALUE OF NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE U.S. IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 903 OR RULE 904, AS APPLICABLE, UNDER THE SECURITIES ACT, (E)
<PAGE>
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (G) PURSUANT TO ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
SECTION 3.14(J) OF THE INDENTURE AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME
PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE COMPANY. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A NON-U.S. PERSON THAT, IN EITHER CASE, IS NOT A
QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S." AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE COMPANY TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
THERMADYNE MFG. LLC.
Junior Subordinated Note due 2009
Initial Accreted Value
No. ___ $__________
THERMADYNE MFG. LLC, a Delaware limited liability company (the
"Company"), which term includes any successor Persons under the Indenture
hereinafter referred to), for value received, promises to pay to __________,
or its registered assigns, the Accreted Value (as defined below) of this Note,
on December 15, 2009.
2
<PAGE>
"Accreted Value" means with respect to this Note, as of any date of
determination, the sum of: (a) the Accreted Value of such Note on the
immediately preceding Interest Payment Date (in the event such date of
determination falls before the first Interest Payment Date, the "Initial
Accreted Value" specified on the face hereof) plus (b) an amount determined by
multiplying (i) the amount referred to in clause (a) by (ii) 15% (provided
that the accretion rate applicable to any period or portion of a period during
which no interest accrues that occurs after December 15, 2004 shall be 16%) by
(iii) the number of days in the period from and including the preceding
Interest Payment Date to such date of determination divided by 360, less (c)
any interest that accrues with respect to such period in accordance with the
terms of the Note.
Interest Rate:
Prior to December 15, 2004, unless a Cash Payment Notice (as defined
below) is properly delivered by the Company, no interest shall accrue
or be payable with respect to the Notes. If the Company elects to pay
interest on any Interest Payment Date prior to December 15, 2004, the
Company shall give written notice (each such notice a "Cash Payment
Notice") of such election to Holders five business days prior to the
immediately preceding Interest Payment Date. Commencing on such
immediately preceding Interest Payment Date until such Interest
Payment Date for which a Cash Payment Notice has been properly
delivered, interest will accrue and be payable at a rate of 15% per
annum to Holders of record of the Notes at the close of business on
the Regular Record Date immediately preceding the Interest Payment
Date for which such Cash Payment Notice has been properly delivered,
whether or not a Business Day. Failure to pay interest after proper
delivery of a Cash Payment Notice for any reason shall not constitute
a breach of this Note or the Indenture and the Accreted Value shall
be determined as if such Cash Payment Notice had not been delivered.
On or after December 15, 2004 interest will accrue and be payable at
a rate of 15% per annum on each Interest Payment Date to Holders of
record of the Notes at the close of business on the immediately
preceding Regular Record Date; provided, that if and for so long as
payment of interest on the Notes is prohibited under the terms of the
Credit Agreement (as defined in the Indenture) interest shall not
accrue or be payable with respect to the Notes.
Interest Payment Dates: March 15, June 15, September 15 and
December 15 of each year.
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<PAGE>
Regular Record Dates: March 1, June 1, September 1 and
December 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: December 22, 1999
THERMADYNE MFG. LLC, as Issuer
By:
---------------------------
Name:
Title:
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<PAGE>
THERMADYNE MFG. LLC
Junior Subordinated Note due 2009
This Note is one of a duly authorized issue of Notes of the Company
consisting of other Junior Subordinated Notes due 2009 of the Company issued
on December 22, 1999 and any replacement Notes issued in exchange for, or in
lieu of, the foregoing in accordance with the Indenture. The Notes are limited
in aggregate principal at maturity to the Accreted Value attributable to
$25,000,000. All of such Notes shall be treated as a single issue and vote
together as one class for all purposes of this Note and the Indenture.
1. Incorporation by Reference of Provisions of the Indenture.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture (as amended in accordance herewith, the
"Indenture") attached hereto as Exhibit A. At all times during which an
indenture is not required to be qualified under the TIA with respect to the
Notes or the Indenture has not otherwise been executed and delivered, to the
extent not inconsistent with any other terms of the Notes set forth herein,
all of the terms and conditions of the Indenture shall be and are hereby
incorporated by this reference in the Notes as if fully set forth herein, and
shall be binding upon the Company and, by accepting a Note, each Holder, and
inure to the benefit of the Holders of the Notes, except that, to the extent
that the Indenture requires (i) any notices, certificates or other items to be
delivered by the Company to the Trustee or any Paying Agent, such notices,
certificates or other items shall be delivered instead to each Holder, (ii)
any notices, certificates or other items to be delivered to the Trustee shall
be delivered instead to the Company (and shall be delivered by the Company to
each Holder), (iii) any notices, certificates or other items to be delivered
by the Trustee to the Holders, such notices, certificates or other items shall
be delivered instead by the Company to the Holders, (iv) any payments to be
made by the Company to the Trustee or Paying Agent for payment to Holders,
such payments shall instead be paid directly by the Company to the applicable
Holder in the same manner as set forth in Section 3 below, (v) approval of the
form of Notes or notations, legends or endorsements thereon by the Trustee,
the Holders of a majority in outstanding principal amount of the Notes shall
instead approve such form and notations, legends or endorsements (the form of
Notes delivered to the initial Holders on the date of original issuance of the
Notes and notations, legends and endorsements thereon being deemed to have
been so approved) , (vi) any Note to be authenticated by the Trustee or an
Authenticating Agent, the Notes shall instead be authenticated by the Company
(the execution and delivery of any Note by manual signature of the Company to
be deemed to constitute such
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<PAGE>
authentication for all purposes), (vii) that a Person other than the Company
and any Affiliate thereof act as Paying Agent for presentation or surrender of
Notes for payment, the Company or any Affiliate thereof may nonetheless so
act, (viii) the Company to initially appoint the Trustee as Registrar or
Paying Agent (to the extent of acting as agent for receiving surrender or
presentations of, but not deposits of payments on, Notes) and agents for
service of demands and notices in connection with the Notes, the Company
instead hereby appoints its office at 101 South Hanley Road, Suite 300, St.
Louis, MO 63105 for such purpose (with Section 4.02 of the Indenture not to
apply thereto), (ix) Notes to be canceled by the Trustee, such Notes shall
instead be canceled by the Company, (x) the Opinions of Counsel to be
delivered to the Trustee pursuant to the Indenture shall instead be delivered
to the Holders, (xi) any Notes to be surrendered or forwarded to the Trustee
or any Paying Agent or Registrar, such Notes shall be surrendered or forwarded
instead to the Company, (xii) any notices, certificates or other items to be
delivered by the Holders to the Registrar or Paying Agent, such notices,
certificates or other items shall be delivered instead to the Company and
(xiii) Notes to be redeemed upon a partial redemption to be selected by the
Trustee, such Notes shall be selected instead by the Company.
2. Accreted Value and Interest; Subordination. The Company agrees
to pay the Accreted Value of this Note on December 15, 2009.
The Company agrees to pay interest on the Accreted Value of this Note
at the rate and in the manner specified below.
"Accreted Value" means with respect to this Note, as of any date of
determination, the sum of: (a) the Accreted Value of such Note on the
immediately preceding Interest Payment Date (in the event such date of
determination falls before the first Interest Payment Date, the "Initial
Accreted Value" specified on the face hereof) plus (b) an amount determined by
multiplying (i) the amount referred to in clause (a) by (ii) 15% (provided
that the accretion rate applicable to any period or portion of a period during
which no interest accrues on the Notes that occurs after December 15, 2004
shall be 16%) by (iii) the number of days in the period from and including the
preceding Interest Payment Date to such date of determination divided by 360,
less (c) any interest that accrues with respect to such period in accordance
with the terms of the Note.
Interest Rate:
Prior to December 15, 2004, unless a Cash Payment Notice (as defined
below) is properly delivered by the Company, no interest shall accrue
or be payable with respect to the Notes. If the Company elects to pay
interest
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<PAGE>
on any Interest Payment Date prior to December 15, 2004, the Company
shall give written notice (each such notice a "Cash Payment Notice")
of such election to Holders five business days prior to the
immediately preceding Interest Payment Date. Commencing on such
immediately preceding Interest Payment Date until such Interest
Payment Date for which a Cash Payment Notice has been properly
delivered, interest will accrue and be payable at a rate of 15% per
annum to Holders of record of the Notes at the close of business on
the Regular Record Date immediately preceding the Interest Payment
Date for which such Cash Payment Notice has been properly delivered,
whether or not a Business Day. Failure to pay interest after proper
delivery of a Cash Payment Notice for any reason shall not constitute
a branch of this Note or the Indenture and the Accreted Value shall
be determined as if such Cash Payment Notice had not been delivered.
On or after December 15, 2004 interest will accrue and be payable at
a rate of 15% per annum on each Interest Payment Date to Holders of
record of the Notes at the close of business on the immediately
preceding Regular Record Date; provided, that if and for so long as
payment of interest on the Notes is prohibited under the terms of the
Credit Agreement (as defined in the Indenture) interest shall not
accrue or be payable with respect to the Notes.
Interest on this Note will accrue as and to the extent set forth
above; provided that, after December 15, 2004 if there is no failure or delay
in the payment of interest and if this Note is authenticated between a Regular
Record Date and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue payments of interest and
Accreted Value, to the extent lawful, at a rate per annum equal to 1% per
annum in excess of the rate of interest applicable to the Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness and all Senior
Subordinated Indebtedness, and this Note is issued subject to such provisions.
Each Holder of this Note, by accepting the same, agrees to and shall be bound
by such provisions and agrees to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture.
3. Method of Payment. The Company will pay interest on the Notes on
each Interest Payment Date for which interest is to be paid to the Persons who
are
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<PAGE>
Holders (as reflected in the Register at the close of business on the Regular
Record Date immediately preceding the Interest Payment Date), in each case,
even if the Note is canceled on registration of transfer or registration of
exchange after such Regular Record Date; provided that, with respect to the
payment of Accreted Value at maturity, the Company will make payment to the
Holder that surrenders this Note to any Paying Agent (which is initially the
Company) on or after December 15, 2009.
The Company will make all payments hereunder in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company will make all payments hereunder by wire transfer
of immediately available funds to the accounts specified by the Holder hereof
or, if no such account is specified, by mailing a check to the Holder's
registered address. If a payment date is a date other than a Business Day,
payment may be made at that place on the next succeeding day that is a
Business Day and no interest shall accrue for the intervening period.
4. Paying Agent and Registrar. Initially, the Company will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar upon written notice to the Holders. The Company, any Subsidiary or
any Affiliate of any of them may act as Paying Agent, Registrar or
co-registrar.
5. Indenture; Limitations. In the event an indenture is required to
be qualified under the Trust Indenture Act of 1939 (U.S. Code SS 77aaa-77bbbb),
as amended from time to time (the "TIA"), with respect to the Notes, or at any
time upon the request of Holders of in excess of 25% in aggregate principal
amount of the outstanding Notes, the Company shall, and at any other time the
Company, in its sole discretion, may, appoint a trustee (the "Trustee") who
satisfies the eligibility requirements set forth in Section 7.10 of the
Indenture and, in any such event, the Company shall take whatever actions are
necessary to cause an Indenture substantially in the form of Exhibit A attached
hereto to be executed and delivered by the Company and the Trustee and to be
qualified under the TIA. In such event, (i) this Note shall be deemed to be one
of an issue of Notes of the Company issued under the Indenture; (ii) the terms
of the Notes shall be deemed to include those stated in the Indenture and those
made part of the Indenture by reference to the TIA, as amended from time to
time; and (iii) the Notes shall be subject to all such terms. Holders of Notes
are referred to the Indenture and the TIA for a statement of all such terms. In
such event, the Company may require holders of the Notes, and each Holder by his
or her acceptance hereof agrees upon the Company's request, to surrender to the
Trustee all Notes in the form hereof in exchange for replacement Notes
substantially in the form of Exhibit A to the Indenture.
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<PAGE>
The Notes are unsecured junior subordinated obligations of the
Company.
6. Optional Redemption. The Notes may be redeemed at the option of
the Company, in whole, at any time and from time to time, on and prior to
maturity at the following Redemption Prices (expressed in percentages of the
Accreted Value thereof on the relevant Redemption Date), plus accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date); provided that the Company shall not
optionally redeem any Notes except and to the extent permitted by the Credit
Agreement,
(a) if redeemed prior to December 15, 2004 at a redemption price
equal to 115% of the Accreted Value of the Notes; and
(b) if redeemed during the 12-month period commencing December 15 of
each of the years set forth below:
Year Redemption Price
2004............................................. 107.5%
2005............................................. 105.0%
2006............................................. 102.5%
2007 and thereafter.............................. 100%
Notice of a redemption will be mailed, first-class postage prepaid,
at least 30 days but not more than 60 days before the Redemption Date to each
Holder's registered address. On and after the Redemption Date, interest ceases
to accrue on, and the Accreted Value shall cease to increase with respect to,
Notes or portions of Notes called for redemption, unless the Company defaults
in the payment of the Redemption Price.
7. Repurchase upon a Change in Control. Upon the occurrence of a
Change in Control, each Holder shall have the right to require that the
Company repurchase such Holder's Notes at a purchase price in cash equal to
101% of the Accreted Value thereof on the date of purchase, plus, if
applicable, accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date); provided, that
the Company shall not be required to
10
<PAGE>
repurchase Notes upon a Change of Control if the Company is unable to obtain
all necessary consents under the Credit Agreement for such repurchase.
8. Denominations; Transfer; Exchange. The Notes are in fully
registered form without coupons, in denominations of $1,000 and any integral
multiples of $1,000. A Holder may register the transfer or exchange of Notes
in accordance with the Indenture. The Company may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or permitted by the Indenture.
9. Persons Deemed Owners. A Holder may be treated as the owner of a
Note for all purposes.
10. Discharge Prior to Redemption or Maturity. If the Company
irrevocably deposits, or causes to be deposited, with a trustee who could
qualify to serve as Trustee under the Indenture money or U.S. Government
Obligations sufficient to pay the then outstanding Accreted Value of and
accrued interest, if any, on the Notes (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes, except in certain
circumstances for certain sections thereof, and (b) to redemption or maturity,
the Company will be discharged from certain covenants set forth in the
Indenture.
11. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate Accreted Value of the Notes
then Outstanding. Without notice to or the consent of any Holder, the Company
may amend the Indenture or the Notes to the extent set forth in the Indenture.
12. Restrictive Covenants. The Indenture contains certain covenants,
including, without limitation, covenants with respect to the following
matters: (i) redemption of or payments on Junior Securities and Parity
Securities; (ii) dividends on Junior Securities; (iii) transactions with
Affiliates; and (iv) repurchase of Notes upon a Change in Control. Within 120
days after the end of each fiscal year, the Company must report to the Holders
on compliance with such limitations.
13. Voting. The Subscription Agreement dated as of December 22, 1999
relating to the initial purchase of this Note provides that in the event that
after December 15, 2004 the Company does not pay interest in cash on four
consecutive Interest Payment Dates or on six Interest Payment Dates, the
Principal and its affiliates who are signatories to the Subscription Agreement
shall cause, to the extent that they shall have the power to so cause, two
members
11
<PAGE>
selected by the Holders of a majority of the Accreted Value of the Notes,
voting as a single class, to be elected to the Board of Directors of Parent.
Further, the Principal and such affiliates shall cause, to the extent that
they shall have the power to so cause, such directors to serve on the Board of
Directors until such time as the Company pays interest in cash on four
consecutive Interest Payment Dates following their election.
14. Successor Persons. When a successor person or other entity
(other than a Subsidiary of the Company) assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor person will be
released from those obligations.
15. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
16. Provisions of Indenture. Each Holder, by accepting a Note,
agrees, subject to Section 1 above, to be bound by all of the terms and
provisions of the Indenture, as the same may be amended from time to time.
17. Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by commercial courier service, by telex, by telecopier
or registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Facsimile No: (314) 746-2374
(314) 746-2327
Attn: Jim Tate or Stephanie Josephson
with a copy to:
R. Scott Cohen, Esq.
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
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<PAGE>
Dallas, TX 75201-6950
Fax: (214) 746-7777
Any notice required to be given to a Holder shall be deemed to have
been given upon the mailing by first class mail, postage prepaid, of such
notices to Holders at their registered address as recorded in the Register and
shall be sufficiently given to a Holder if so mailed within the time
prescribed.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
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<PAGE>
In connection with any transfer of this Note occurring prior to the
Resale Restriction Termination Date for this Note, the undersigned confirms
that without utilizing any general solicitation or general advertising that:
Check One
(a) |_| this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
(b) |_| this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Company shall not be
obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.10 of the Indenture shall have
been satisfied.
Date:
-----------------------
- ----------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
Signature Guarantee:
-------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Company, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Company
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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<PAGE>
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
--------------------------
- --------------------------------
To be executed by an executive officer
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.10 of the Indenture, check the box: |_|
If you wish to have a portion of this Note purchased by the Company
pursuant to 4.10 of the Indenture, state the amount (in Accreted Value) below:
$
---------------------.
Date:
---------------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
-----------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
B-1
<PAGE>
EXHIBIT C
THERMADYNE HOLDINGS CORPORATION
Warrant for the Purchase of Shares of
Thermadyne Holdings Corporation
No. ___ Warrant to Purchase
_____ Shares of
Common Stock
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.
FOR VALUE RECEIVED, THERMADYNE HOLDINGS CORPORATION, a Delaware
corporation (the "Company"), hereby certifies that __________, 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.
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.
<PAGE>
"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 any other security for which this Warrant may be exercised
pursuant to paragraph (i) hereof after the occurrence of any of the transactions
described in such paragraph.
"Exercise Price" means $0.01 per Warrant Share, such Exercise Price to
be adjusted from time to time as provided herein.
"Expiration Date" means December 15, 2009 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 as defined in paragraph
(h)(3) hereof.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, or 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 50% of
the Warrants.
"Subscription Agreement" means the Subscription Agreement dated as of
the date hereof between the Company, Thermadyne Mfg. LLC and the investors party
thereto.
"Warrants" means the Warrants issued pursuant to the Subscription
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 duly executed by the Holder, together with payment of
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<PAGE>
the applicable Exercise Price. 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 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 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.
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<PAGE>
(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 applicable.
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
it shall reserve 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.
(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)(3)) 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 would, but for this
provision, reduce the Exercise Price below the par value of the Common Stock.
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(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject to the
provisions of a Registration Rights Agreement dated as of December
22, 1999. Each holder of this Warrant Certificate by 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
Registration Rights Agreement.
(2) 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 cancelled.
(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
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<PAGE>
Common Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is the
surviving 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, after
giving effect to paragraph (h)(5), 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 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 surviving corporation) of
evidences of indebtedness, cash, assets or other property (other
than dividends payable in Common Stock), 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 below) of the
portion of the evidences of indebtedness, cash, assets or other
property 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. The fair
market value of any such evidences of indebtedness, assets or
other property 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
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<PAGE>
such distribution and furnished with a description and the fair
market value thereof, as determined by the Board of Directors.
(3) For the purpose of any computation under paragraph (e)
or paragraph (h)(2) 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 or
applicable regulatory restrictions. 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
Common Stock as determined by an independent appraiser retained by
the Company and reasonably acceptable to the Principal Holders.
The expenses of such independent appraiser shall be paid by (x)
the Principal Holders, if the fair market value determined by such
appraiser is less than that determined by the Board of Directors,
and otherwise
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<PAGE>
(y) by the Company. 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 or its subsidiaries.
(4) 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.
(5) Upon each adjustment of the Exercise Price as a result
of the calculations made in paragraphs (h)(1) or (h)(2) 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.
(6) The Company shall notify all Holders of the fixing of
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.
(7) 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 the secretary or any 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
8
<PAGE>
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.
(8) The Holder shall, at its option, be entitled to
receive, in lieu of the adjustment pursuant to paragraph (h)(2)
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)(8) 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)(7) 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
9
<PAGE>
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.
(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: Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Fax: (314) 746-2374
(314) 746-2327
Attention: Jim Tate or Stephanie Josephson
If to the Holder: c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, NY 10172
Telecopy: (212) 892-7272
Attention: William F. Dawson, Jr.
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.
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(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 Principal Holders 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.
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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
December 22, 1999.
THERMADYNE HOLDINGS CORPORATION
By:
-------------------------------------
Name:
Title:
Acknowledged and Agreed:
[HOLDER]
By:
------------------------------------
Name:
Title:
<PAGE>
WARRANT EXERCISE NOTICE
To: Thermadyne Holding Corporation
The undersigned hereby notifies you of its intention to exercise the
Warrant to purchase shares of Common Stock, par value $.01 per share, of
Thermadyne Holdings Corporation. The undersigned intends to exercise the Warrant
to purchase ___________ shares (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 by __________ [specify any
method permitted by paragraph (b) of the Warrant].
Date:
-------------
---------------------------------------
(Signature of Owner)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
<PAGE>
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 4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1999
by and among
THERMADYNE HOLDINGS CORPORATION,
THERMADYNE MFG. LLC,
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.,
DLJMB FUNDING II, INC.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS-A, L.P.,
DLJ EAB PARTNERS, L.P.,
DLJ ESC II L.P.
and
DLJ FIRST ESC, L.P.
relating to the registration of
Junior Subordinated Notes due 2009 of Thermadyne Mfg. LLC
and
Warrants for the Purchase of Shares of Common Stock of
Thermadyne Holdings Corporation
<PAGE>
This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 22, 1999, by and among Thermadyne Mfg. LLC, a
Delaware limited liability company (the "Company"), Thermadyne Holdings
Corporation, a Delaware corporation ("Parent"), 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., DLJMB
Funding II, Inc., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A,
L.P., DLJ EAB Partners, L.P., DLJ ESC II L.P. and DLJ First ESC, L.P. (each a
"DLJ Buyer" and, collectively, the "DLJ Buyers" and sometimes referred to as the
"Buyers"), each of whom has agreed to purchase the Company's Junior Subordinated
Notes due 2009 (the "Notes") and Warrants for the Purchase of Shares of Common
Stock of Parent (the "Warrants") pursuant to the Subscription Agreement (as
defined below).
This Agreement is made pursuant to the Subscription Agreement, dated
December 22, 1999 (the "Subscription Agreement"), by and among the Company,
Parent and the Buyers. In order to induce the Buyers to purchase the Notes and
the Warrants, the Company and Parent have agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Buyers set forth in Section 2 of the
Subscription Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, attached as Exhibit A
to the Notes (the "Indenture").
The parties hereby agree as follows:
SECTION 1. (a) Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Accreted Value: Shall have the meaning assigned to it in the Indenture.
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Affiliated Market Maker: A Broker-Dealer who is deemed to be an
Affiliate of the Company and/or Parent and who is, therefore, required to
deliver a prospectus in connection with sales or market making activities.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Common Stock: The common stock, par value $0.01 per share, of Parent.
Commission: The Securities and Exchange Commission.
Demand Registration: As defined in Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expiration Date: 5:00 p.m. New York City time on December 15, 2009.
Note Registration Statement: Any registration statement of the Company
relating to the registration of Transfer Restricted Notes, in each case, (i)
that is filed pursuant to the provisions of this Agreement and (ii) including
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material incorporated
by reference therein.
Parent Securities: The Common Stock and securities convertible into or
exchangeable for Common Stock and options, warrants or other rights to acquire
Common Stock or any other equity security issued by Parent.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Public Offering: An underwritten public offering of Transfer Restricted
Securities of the Company or Parent pursuant to an effective registration
statement under the Act.
Registration Statement: Any Note Registration Statement or Warrant
Registration Statement.
Rule 144: Rule 144 promulgated under the Act.
Securities: shall mean the Notes, the Warrants and the Warrant Shares.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Notes: Each Note, until the earliest to occur of
(a) the date on which such Note has been disposed of in accordance with a Note
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Registration Statement, or (b) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Act.
Transfer Restricted Securities: Each Transfer Restricted Note and each
Transfer Restricted Warrant Security.
Transfer Restricted Warrant Securities: (a) Each Warrant and Warrant
Share until the earlier to occur of (i) the date on which such Warrant or
Warrant Share has been disposed of in accordance with a Warrant Registration
Statement or the date on which such Warrant Share is issued upon exercise of a
Warrant in accordance with a registration statement filed under the Act and (ii)
the date on which such Warrant or Warrant Share is distributed to the public
pursuant to Rule 144 under the Act.
Warrant Agent: The warrant agent, if any, with respect to the Warrants.
Warrant Share: The Common Stock of Parent issuable on the exercise
of the Warrants.
Warrant Registration Statement: Any registration statement of Parent
relating to the registration of Transfer Restricted Warrant Securities,
including any Warrant Shelf Registration Statement, in each case, (i) that is
filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
(b) Other Definitions.
Defined in
Term Section
---- -------
Applicable Holdback Period 6
Demand Registration 4(a)
Demand Registration Reguest 3(a)
Holder 2
Incidental Registration 5(a)
indemnified party 10(c)
indemnifying person 10(c)
Inspectors 8(a)
Losses 10(a)
Maximum Offering Size 4(e)
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<PAGE>
Recommencement Date 8(c)
Records 8(a)
Selling Holders 4(a)
Suspension Notice 8(c)
Warrant Shelf Registration Statement 7(a)
SECTION 2. Holders.
A person is deemed to be a holder of Transfer Restricted Securities
whenever such person is the record holder of Transfer Restricted Securities. As
used herein, "Holder" refers to the holder of a Transfer Restricted Note or a
Transfer Restricted Warrant Security, or both, as the context may require.
SECTION 3. Demand Registration Rights. (a) Notes: At any time after
Parent has filed its annual report on Form 10-K for the year ended December 31,
1999, if the Company or Parent, as the case may be, shall receive a written
request (a "Demand Registration Request") from the Holders of 50% or more of the
aggregate Accreted Value of Transfer Restricted Notes then outstanding to effect
the registration of such Transfer Restricted Notes, then the Company or Parent,
as the case may be, shall effect the registration under the Act of such Transfer
Restricted Notes in accordance with Section 4 hereof.
(b) Warrant Securities: At any time after Parent has filed its annual
report on Form 10-K for the year ended December 31, 1999 if Parent shall receive
a Demand Registration Request from the Holders of 50% or more of the aggregate
Transfer Restricted Warrant Securities then outstanding to effect the
registration of such Transfer Restricted Warrant Securities, then Parent shall
effect the registration under the Act of such Transfer Restricted Warrant
Securities in accordance with Section 4 and Section 7 hereof.
SECTION 4. Demand Registration. (a) If the Company or Parent, as the
case may be shall receive a Demand Registration Request from the Holders (the
"Selling Holders") of Transfer Restricted Securities that the Company or Parent,
as the case may be, effect the registration under the Act of all or a portion of
such Selling Holders' Transfer Restricted Securities, and specifying the
intended method of disposition thereof, then the Company or Parent, as the case
may be, shall promptly give written notice of such requested registration (a
"Demand Registration") at least 30 days prior to the anticipated filing date of
the registration statement relating to such Demand Registration to all Holders
and thereupon will use its best efforts to effect, as expeditiously as possible,
the registration under the Act of:
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<PAGE>
(i) the Transfer Restricted Securities which the Company or Parent,
as the case may be, has been so requested to register by the Selling
Holders, then held by such Selling Holders; and
(ii) subject to the restrictions set forth in Section 4(e), all
other Transfer Restricted Securities of the same type as that to which
the request by the Selling Holders relates which any other person
entitled to request Parent to effect an Incidental Registration (as
such term is defined in Section 5) pursuant to Section 5 has requested
Parent to register by written request received by Parent within 15 days
after the receipt by such Holders of such written notice given by
Parent,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Transfer Restricted Securities so
to be registered; provided that, (A) the Company shall not be obligated to
effect more than two Demand Registrations with respect to Transfer Restricted
Notes, and (B) Parent shall not be obligated to effect more than one Demand
Registration with respect to Transfer Restricted Warrant Securities in addition
to its obligations under Section 7; provided, further that the Company shall not
be obligated to effect any shelf registration of Transfer Restricted Notes and
neither the Company nor Parent shall be obligated to effect a Demand
Registration unless the aggregate proceeds expected to be received from the sale
of the Transfer Restricted Securities to be included in such Demand
Registration, in the reasonable opinion of DLJ Merchant Banking Partners II,
L.P. exercised in good faith, equals or exceeds $15,000,000. In no event will
the Company or Parent be required to effect more than one Demand Registration
within any four-month period.
(b) Promptly after the expiration of the 15-day period referred to in
Section 4(a)(ii) hereof, Parent will notify all of the Selling Holders of the
other Holders who have requested to include their Transfer Restricted Warrant
Securities in the registration and the number of Transfer Restricted Securities
requested to be included therein. The Selling Holders requesting a registration
under this Section 4 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 or Parent, as the case may be, revoking such request, in which case
such request, so revoked, shall be considered an effected Demand Registration
unless the Selling Holders reimburse the Company or Parent, as the case may be,
for all costs incurred by the Company or Parent, as the case may be, in
connection with such registration, or unless such revocation arose out of the
fault of the Company or Parent, as the case may be, in which case such request
shall not be considered an effected Demand Registration.
6
<PAGE>
(c) The Company or Parent, as the case may be, will pay all
registration expenses as set forth in Section 9 hereof.
(d) A registration made pursuant to this Section 4 shall not be deemed
to have been effected (i) unless the registration statement relating thereto (A)
has become effective under the Act and (B) has remained effective for a period
of at least 180 days (or such shorter period in which all Transfer Restricted
Securities of the Holders included in such registration have actually been sold
thereunder); provided that if after any registration statement filed pursuant to
this Section 4 becomes effective (x) such registration statement is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court and (y) less than 75% of the
Transfer Restricted Securities included in such registration statement has been
sold thereunder, such registration statement shall not be considered an effected
Demand Registration or (ii) if the Maximum Offering Size (as defined below) is
reduced in accordance with Section 5.01(e) or 5.01(f) such that less than 66
2/3% of the Transfer Restricted Securities of the Selling Holders 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 or Parent, as the case may
be, and the Selling Holders that, in its view, (i) the number of Transfer
Restricted Securities requested to be included in such registration (including
any securities which the Company or Parent, as the case may be, proposes to be
included which are not Transfer Restricted Securities) or (ii) the inclusion of
some or all of the Transfer Restricted 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 or Parent, as
the case may be, will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(i) first, the Transfer Restricted Securities requested to be
included in such registration pursuant to Section 4(a)(i) and pursuant
to Section 5 by the Holders, allocated (if necessary) pro rata among
such Holders on the basis of the relative number of Transfer Restricted
Securities each such Holder has requested to be included in such
registrations; and
(ii) second, securities to be sold for the account of other persons
(including the Company or Parent, as the case may be), with such
priorities among them as the Company or Parent, as the case may be,
shall determine.
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(f) Registration Statement Form. Registrations under this Section 4
shall be on such appropriate registration form of the Commission (i) as shall be
selected by the Company or Parent, as the case may be, and as shall be
reasonably acceptable to the Holders and (ii) as shall permit the disposition of
Transfer Restricted Securities in accordance with the method or methods of
disposition intended on the part of the Holders. Notwithstanding anything herein
to the contrary, if, pursuant to a registration pursuant to this Section 4, the
Company or Parent, as the case may be, proposes to effect registration by filing
of a registration statement on Form S-3 (or any successor or similar short-form
registration statement) and any managing underwriter shall advise the Company or
Parent, as the case may be, in writing that, in its opinion, the use of another
form of registration statement is of material importance to the success of such
proposed offering, then such registration shall be effected on such other form.
SECTION 5. Incidental Registration. (a) If Parent proposes to register
any Parent Securities under the 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 Parent or (C) in connection with a direct or indirect
acquisition by Parent of another company, whether or not for sale for its own
account), it will each such time, subject to the provisions of Section 5(b),
give prompt written notice at least 40 days prior to the anticipated filing date
of the registration statement relating to such registration to each Holder of
Transfer Restricted Warrant Securities, which notice shall set forth such
Holder's rights under this Section 5 and shall offer such Holders the
opportunity to include in such registration statement such number of Transfer
Restricted Warrant Securities as each such Holder may request (an "Incidental
Registration"). Upon the written request of any such Holder made within 20 days
after the receipt of notice from Parent (which request shall specify the number
of Transfer Restricted Warrant Securities intended to be disposed of by such
Holder), Parent will use its best efforts to effect the registration under the
Act of all Transfer Restricted Warrant Securities which Parent has been so
requested to register by such Holders, to the extent required to permit the
disposition of the Transfer Restricted Warrant Securities so to be registered;
provided that (I) if such registration involves a Public Offering, all such
Holders requesting to be included in Parent's registration must sell their
Transfer Restricted Warrant Securities to the underwriters on the same terms and
conditions as apply to Parent and (II) if, at any time after giving written
notice of its intention to register any Parent Securities pursuant to this
Section 5 and prior to the effective date of the registration statement filed in
connection with such registration, Parent shall determine for any reason not to
register such securities, Parent shall give written notice to all such Holders
of Transfer Restricted Warrant Securities and, thereupon, shall be relieved of
its
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obligation to register any Transfer Restricted Warrant Securities in connection
with such registration. No registration effected under this Section 5 shall
relieve Parent of its obligations to effect a Demand Registration to the extent
required by Section 4. Parent will pay all Registration Expenses in connection
with each registration of Transfer Restricted Warrant Securities requested
pursuant to this Section 5.
(b) If a registration pursuant to this Section 5 involves a Public
Offering (other than in the case of a Public Offering requested under Section 3
by the Holders in a Demand Registration, in which case the provisions with
respect to priority of inclusions in such offering as set forth in Section 4(e)
shall apply) and the managing underwriter advises Parent that, in its view, the
number of Parent Securities and Transfer Restricted Warrant Securities that
Parent and Holders intend to include in such registration exceeds the Maximum
Offering Size, Parent will include in such registration, in the following
priority, up to the Maximum Offering Size:
(i) first, so much of the Parent Securities proposed to be
registered by Parent as would not cause the offering to exceed the
Maximum Offering Size;
(ii) second, all Transfer Restricted Warrant Securities requested to
be included in such registration by the Holders pursuant to this
Section 5 (allocated, if necessary for the offering not to exceed the
Maximum Offering Size, pro rata among such Holders on the basis of the
relative number of Transfer Restricted Warrant Securities so requested
to be included in such registration); and
(iii) third, securities to be sold for the account of other persons,
with such priorities among them as Parent shall determine.
SECTION 6. Holdback Agreements. If any registration of Transfer
Restricted Securities shall be in connection with a Public Offering, the Holders
agree not to effect any public sale or distribution, including any sale pursuant
to Rule 144, or any successor provision, under the Act, of any Transfer
Restricted Securities, and not to effect any such public sale or distribution of
any other securities of the Company or Parent or of any stock convertible into
or exchangeable or exercisable for any securities of the Company or Parent (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, the
Company and Parent and (ii) 180 days (such lesser period, the "Applicable
Holdback Period").
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SECTION 7. Warrant Shelf Registration. (a) If any Warrants are included
in a Demand Registration, Parent shall prepare and cause to be filed with the
Commission on or prior to 30 days (or, if the Warrants are not at such time of
the same class as securities listed on a national securities exchange or quoted
in a U.S. automated system (as determined pursuant to Rule 144A under the Act,
90 days)) after the date of the Demand Registration Request, pursuant to Rule
415 under the Act, a Registration Statement (each a "Warrant Shelf Registration
Statement") on the appropriate form relating to resales of Transfer Restricted
Warrant Securities by the Holders thereof. Parent shall use its best efforts to
cause the Warrant Shelf Registration Statement to be declared effective by the
Commission on or before 90 days (or, if the Warrants are not at such time of the
same class as securities listed on a national securities exchange or quoted in a
U.S. automated system (as determined pursuant to Rule 144A under the Act, 180
days), after the date the Demand Registration is effected.
To the extent necessary to ensure that the Warrant Shelf Registration
Statement is available for sales of Transfer Restricted Warrant Securities by
the Holders thereof entitled to the benefit of this Section 7(a), Parent shall
use its best efforts to keep any Warrant Shelf Registration Statement required
by this Section 7(a) continuously effective, supplemented, amended and current
as required by and subject to the provisions of Section 8(b) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the earlier of (i) two years following the first date as of which no Warrants
remain outstanding and (ii) if all of the Warrants expire unexercised, the
Expiration Date; provided that such obligation shall expire before such date if
Parent delivers to the Warrant Agent (if there is a Warrant Agent at such time,
or, if there is no Warrant Agent, to the Holders) a written opinion of counsel
to Parent (which opinion of counsel shall be satisfactory to Parent) that all
Holders (other than Affiliates of Parent) of Warrants and Warrant Shares may
resell the Warrants and the Warrant Shares without registration under the Act
and without restriction as to the manner, timing or volume of any such sale and
instruct the Warrant Agent to (or if there is no Warrant Agent, Parent shall)
remove the private placement legend from all Warrants and Warrant Shares;
provided, further, that notwithstanding the foregoing, any Affiliate of Parent
may, with notice to Parent, require Parent to keep the Registration Statement
continuously effective for resales by such Affiliate for so long as such
Affiliate holds Warrants or Warrant Shares, including as a result of any
market-making activities or other trading activities of such Affiliate.
(b) Provision by Holders of Certain Information in Connection with the
Warrant Shelf Registration Statement. No Holder of Transfer Restricted Warrant
Securities may include any of its Transfer Restricted Warrant Securities in any
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Warrant Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to Parent in writing the information specified in Item 507
or 508 of Regulation S-K, as applicable, of the Act for use in connection with
any Warrant Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to Parent by such Holder not materially misleading.
Parent will promptly prepare and file a Prospectus supplement including
such information provided by any Holder to the extent that such Holder
reasonably determines that a Prospectus supplement is required in connection
with such Holder's sale of Transfer Restricted Warrant Securities under the
Warrant Shelf Registration Statement and so notifies Parent.
(c) Parent shall have no registration obligations under this Agreement
with respect to any Warrants or Warrant Shares except as provided in Section
3(b) or this Section 7. References herein to the Warrants, Warrant Shares and
Transfer Restricted Warrant Securities shall only refer to such securities to
the extent that Parent has registration obligations therefor.
SECTION 8. Registration Procedures. (a) Whenever Holders request that
any Transfer Restricted Securities be registered pursuant to Sections 3, 4 or 5,
the Company or Parent, as the case may be, will, subject to the provisions of
such Sections, use its best efforts to effect the registration and the sale of
such Transfer Restricted Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any such
request:
(i) The Company or Parent, as the case may be, will as expeditiously
as possible prepare and file with the Commission a registration
statement on any form, subject to Section 4(f), for which the Company
or Parent, as the case may be, then qualifies or which counsel for the
Company or Parent, as the case may be, shall deem appropriate and which
form shall be available for the sale of the Transfer Restricted
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.
(ii) The Company or Parent, as the case may be, will, if requested,
prior to filing a registration statement or prospectus or any amendment
or supplement thereto, furnish to participating Holder and each
underwriter, if any, of the Transfer Restricted Securities covered by
such registration statement copies of such registration statement as
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proposed to be filed, and thereafter the Company or Parent, as the case
may be, will furnish to such Holder 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 Holder or underwriter may reasonably
request in order to facilitate the disposition of the Transfer
Restricted Securities owned by such Holder.
(iii) After the filing of the registration statement, the Company or
Parent, as the case may be, will promptly notify each Holder holding
Transfer Restricted Securities covered by such registration statement
of any stop order issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such stop order or
to remove it if entered.
(iv) The Company or Parent, as the case may be, will use its best
efforts to (A) register or qualify the Transfer Restricted Securities
covered by such registration statement under such other securities or
blue sky laws of such jurisdictions in the United States as any Holder
holding such Transfer Restricted Securities reasonably (in light of
such Holder's intended plan of distribution) requests and (B) cause
such Transfer Restricted 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 or Parent, as
the case may be, and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition of the Transfer Restricted Securities owned by such
Holder; provided that the Company or Parent, as the case may be, will
not be required to (1) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this paragraph (d), (2) subject itself to taxation in any such
jurisdiction or (3) consent to general service of process in any such
jurisdiction.
(v) The Company or Parent, as the case may be, will immediately
notify each Holder holding such Transfer Restricted Securities, at any
time when a prospectus relating thereto is required to be delivered
under the 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 Transfer Restricted 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
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<PAGE>
or necessary to make the statements therein not misleading and promptly
prepare and make available to each such Holder any such supplement or
amendment.
(vi) The Holder will have the right, in its sole discretion, to
select an underwriter or underwriters in connection with any Public
Offering, which underwriter or underwriters may include any Affiliate
of DLJ Merchant Banking Partners II, L.P. In connection with any
Public Offering, the Company or Parent, as the case may be, 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
Transfer Restricted 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.
(vii) Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company or Parent, as the case may be,
the Company or Parent, as the case may be, will make available for
inspection by any Holder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the
Company or Parent, as the case may be, pursuant to this Section 8 and
any attorney, accountant or other professional retained by any such
Holder or underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of the
Company or Parent, as the case may be, (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's or Parent's, as the
case may be, officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection with
such registration statement. Records that the Company or Parent, as the
case may be, determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (A) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such registration
statement or (B) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction. Each
Holder 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 Company's or Parent's
securities unless and until such information is made generally
available to the public. Each Holder 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 or Parent, as the
case may be, and allow the Company or Parent, as the case may be, at
its expense, to undertake
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<PAGE>
appropriate action to prevent disclosure of the Records deemed
confidential.
(viii) The Company or Parent, as the case may be, will furnish to
each such Holder and to each such underwriter, if any, a signed
counterpart, addressed to such underwriter, of (A) an opinion or
opinions of counsel to the Company or Parent, as the case may be, and
(B) a comfort letter or comfort letters from the Company's or Parent's,
as the case may be, 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
Holders or the managing underwriter therefor reasonably requests.
The Company or Parent, as the case may be, may require each such Holder
to promptly furnish in writing to the Company or Parent, as the case may be,
such information regarding the distribution of the Transfer Restricted
Securities as the Company or Parent, as the case may be, may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
Each such Holder agrees that, upon receipt of any notice from the
Company or Parent, as the case may be, of the happening of any event of the kind
described in Section 8(a)(v), such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the registration statement
covering such Transfer Restricted Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
8(a)(v), and, if so directed by the Company or Parent, as the case may be, such
Holder will deliver to the Company or Parent, as the case may be, all copies,
other than any permanent file copies then in such Holder's possession, of the
most recent prospectus covering such Transfer Restricted Securities at the time
of receipt of such notice. In the event that the Company or Parent, as the case
may be, shall give such notice, the Company or Parent, as the case may be, shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 8(a)(i)) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 8(a)(v) to the date when the Company or Parent, as the case
may be, shall make available to such Holder a prospectus supplemented or amended
to conform with the requirements of Section 8(a)(v).
(b) Special Warrant Shelf Registration Procedures. In connection with
any Warrant Shelf Registration Statement and any related Prospectus required by
this Agreement, Parent shall:
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(i) use its best efforts to keep such Warrant Shelf Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 7 of this Agreement.
Upon the occurrence of any event that would cause any such Warrant
Shelf Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not misleading
or (B) not to be effective and usable for resale of the relevant
Transfer Restricted Warrant Securities during the period required by
this Agreement, Parent shall file promptly an appropriate amendment to
such Warrant Shelf Registration Statement curing such defect, and, if
Commission review is required, use best efforts to cause such amendment
to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Warrant Shelf Registration Statement
as may be necessary to keep such Warrant Shelf Registration Statement
effective for the period set forth in Section 7 hereof; cause the
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act,
and to comply fully with Rules 424, 430A and 462, as applicable, under
the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Warrant Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Warrant Shelf Registration Statement
or supplement to the Prospectus;
(iii) advise each Holder who is an Affiliated Market Maker promptly
and, if requested by such person, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Warrant Shelf
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Warrant Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Warrant Shelf Registration
Statement under the Act or of the suspension by any state securities
commission of the qualification of the relevant Transfer Restricted
Warrant Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, and (D)
of the existence of any fact or the happening of any event that makes
any statement of a material fact made
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in the Warrant Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Warrant Shelf Registration Statement in order to
make the statements therein not misleading, or that requires the making
of any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Warrant Shelf
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the relevant Transfer Restricted
Warrant Securities under state securities or Blue Sky laws, Parent
shall use best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) subject to Section 8(b)(i), if any fact or event contemplated
by Section 8(b)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Warrant Shelf
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the relevant
Transfer Restricted Warrant Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder and each Affiliated Market Maker in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Warrant Shelf Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Warrant Shelf Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Warrant Shelf Registration Statement), which documents will be subject
to the review and comment of such persons in connection with such sale,
if any, for a period of at least five business days, and Parent will
not file any such Warrant Shelf Registration Statement or Prospectus or
any amendment or supplement to any such Warrant Shelf Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which such persons shall reasonably object within five
business days after the receipt thereof. Such person shall be deemed to
have reasonably objected to such filing if such Warrant Shelf
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or
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<PAGE>
omit to state any material fact necessary to make the statements
therein not misleading or fails to comply with the applicable
requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Warrant Shelf Registration Statement
or Prospectus, provide copies of such document to each Holder and each
Affiliated Market Maker in connection with such exchange or sale, if
any, make Parent's representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
persons may reasonably request;
(vii) make available, at reasonable times, for inspection by each
Holder and each Affiliated Market Maker and any attorney or accountant
retained by such persons, all financial and other records, pertinent
corporate documents of Parent and cause Parent's officers, directors
and employees to supply all information reasonably requested by any
such persons, attorney or accountant in connection with such Warrant
Shelf Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(viii) if requested by any Holders in connection with such exchange
or sale or any Affiliated Market Maker, promptly include in any Warrant
Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such persons
may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
relevant Transfer Restricted Warrant Securities and the use of the
Warrant Shelf Registration Statement or Prospectus for market making
activities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after Parent is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(ix) furnish to each Holder in connection with such exchange or sale
and each Affiliated Market Maker, without charge, at least one copy of
the Warrant Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each Holder and each Affiliated Market Maker without
charge, as many copies of the Prospectus (including each
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preliminary prospectus) and any amendment or supplement thereto as such
persons reasonably may request; Parent hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling person in connection with the offering and the
sale of the Transfer Restricted Warrant Securities covered by the
Prospectus or any amendment or supplement thereto and all market making
activities of such Affiliated Market Maker, as the case may be;
(xi) upon the request of any Holder, enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer
Restricted Warrant Securities pursuant to any applicable Warrant Shelf
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any applicable Warrant Shelf Registration Statement.
In such connection, and also in connection with market making
activities by any Affiliated Market Maker, Parent shall:
(A) upon request of any person, furnish (or in the case of
Sections 8(b)(xi)(A)(2) and 8(b)(xi)(A)(3), use best efforts to
cause to be furnished) to each person, upon the effectiveness of the
Warrant Shelf Registration Statement or in connection with any sale
of the Warrants (or Warrant Shares) pursuant to the Warrant Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf of
Parent by (x) the chief executive officer and (y) the principal
financial or accounting officer of Parent confirming, as of the
date thereof, the matters set forth in Section 6.02(a) of the
Subscription Agreement and such other matters as are customary
in connection with public offerings of securities similar to the
Warrants (or Warrant Shares) as such person may reasonably
request;
(2) an opinion, dated the date of effectiveness of the
Warrant Shelf Registration Statement or the closing date of such
sale of Warrants (or Warrant Shares) of counsel for Parent
covering matters as are customary for public offerings of
securities similar to the Warrants (or Warrant Shares) and such
other matters as such person may reasonably request, and in any
event including a statement to the effect that such counsel has
participated in
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conferences with officers and other representatives of Parent
and representatives of the independent public accountants for
Parent and have considered the matters required to be stated
therein and the statements contained therein, although such
counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such
counsel advises that, on the basis of the foregoing (relying as
to materiality to the extent such counsel deems appropriate upon
the statements of officers and other representatives of Parent
and without independent check or verification), no facts came to
such counsel's attention that caused such counsel to believe
that the applicable Warrant Shelf Registration Statement, at the
time such Warrant Shelf Registration Statement or any
post-effective amendment thereto became effective and, in the
case of any sale pursuant to a Warrant Shelf Registration
Statement, as of the date of the purchase agreement for such
sale and the closing date therefor, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Warrant Shelf Registration Statement as of its
date and, in the case of the opinion dated the closing date of a
sale, as of the closing date of such sale, as applicable,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any
Warrant Shelf Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Warrant Shelf Registration Statement, or as
of the date of closing of a sale pursuant to the Warrant Shelf
Registration Statement, as the case may be, from the independent
accountants for Parent in the customary form and covering
matters of the type customarily covered in
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comfort letters to underwriters in connection with underwritten
offerings; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling such persons to evidence
compliance with the matters covered in Section 8(b)(xi)(A) above
and with any customary conditions contained in any agreement
entered into by Parent pursuant to this Section 8(b)(xi);
(xii) prior to any public offering of Transfer Restricted Warrant
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Warrant Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders may request and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Warrant
Securities covered by the applicable Warrant Shelf Registration
Statement; provided, however, that Parent shall not be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Warrant Shelf Registration Statement, in
any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Warrant
Securities that will result in such securities no longer being Transfer
Restricted Warrant Securities, cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Warrant Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted Warrant
Securities in such denominations and such names as the selling Holders
may request at least two business days prior to such sale of Transfer
Restricted Warrant Securities;
(xiv) use their respective best efforts to cause the disposition of
the Transfer Restricted Warrant Securities covered by the Warrant Shelf
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Warrant Securities, subject to the proviso
contained in Section 8(b)(xii) above;
(xv) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available
to
20
<PAGE>
its security holders with regard to any applicable Warrant Shelf
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Warrant Shelf Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xvi) provide promptly to each Holder and Affiliated Market Maker,
upon request, each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act.
(c) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 8(b)(iii)(C) or any notice from the
Company (in the case of a Note Registration Statement) or Parent (in the case of
a Warrant Registration Statement) of the existence of any fact of the kind
described in Section 8(b)(iii)(D) hereof (in each case, a "Suspension Notice"),
such person will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until (i) such
person has received copies of the supplemented or amended Prospectus
contemplated by Section 8(b)(iv) hereof, or (ii) such person is advised in
writing by the Company or Parent, as applicable, that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (in each case, the
"Recommencement Date"). Each person receiving a Suspension Notice hereby agrees
that it will either (i) destroy any Prospectuses, other than permanent file
copies, then in such person's possession which have been replaced by the Company
or Parent, as applicable with more recently dated Prospectuses or (ii) deliver
to the Company or Parent, as applicable(at the Company's or Parent's expense)
all copies, other than permanent file copies, then in such person's possession
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 4 or Section 7
hereof, as applicable, shall be extended by a number of days equal to the number
of days in the period from and including the date of delivery of the Suspension
Notice to the date of delivery of the Recommencement Date.
SECTION 9. Registration Expenses.
(a) All expenses incident to the Company's and Parent's performance of
or compliance with this Agreement will be borne by the Company or Parent, as the
case may be, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
21
<PAGE>
expenses; (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws (including without limitation the costs and
expenses of any Trustee selected pursuant to the requirements of the Trust
Indenture Act); (iii) all expenses of printing (including printing of
Prospectuses whether for sales, market making or otherwise), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company, Parent and the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Warrants or the
Warrant Shares on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company and Parent (including
the expenses of any special audit and comfort letters required by or incident to
such performance).
The Company and Parent will each, in any event, bear its respective
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any person, including special
experts, retained by the Company or Parent.
The Holders will bear any underwriting discounts and commissions
incurred in connection with the resale of any of their securities.
(b) In connection with any Registration Statement required by this
Agreement, the Company or Parent, as the case may be, will reimburse the Buyers
and the Holders of Transfer Restricted Securities who are selling or reselling
Transfer Restricted Notes pursuant to the "Plan of Distribution" contained in a
Note Registration Statement or selling or reselling Warrants or Warrant Shares
pursuant to a Warrant Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, who shall be Davis Polk &
Wardwell, unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
SECTION 10. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
(collectively, "Losses") caused by any untrue statement or alleged untrue
statement of a
22
<PAGE>
material fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto) provided by the Company to
any Holder or any prospective purchaser of Notes 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 are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the Company by any of the Holders; provided that
the Company shall not be liable to any Holder, its directors, officers and any
controlling person for any Losses that are caused by any untrue statement or
alleged untrue statement of a material fact if (i) such Holder was required by
law to send or deliver, and failed to send or deliver, a copy of the Prospectus
with or prior to delivery of written confirmation of the sale by such Holder to
the person asserting the claims from which such Losses arise and (ii) the
Prospectus would have corrected such untrue statement or alleged untrue
statement or omission or alleged omission.
Parent agrees to indemnify and hold harmless each Holder, its
directors, officers and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all Losses caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by Parent to any Holder or any prospective purchaser of registered
Warrants or Warrant Shares, 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 are caused
by an untrue statement or omission or alleged untrue statement or omission that
is based upon information relating to any of the Holders furnished in writing to
Parent by any of the Holders; provided that Parent shall not be liable to any
Holder, its directors, officers and any controlling person for any Losses that
are caused by any untrue statement or alleged untrue statement of a material
fact if (i) such Holder was required by law to send or deliver, and failed to
send or deliver, a copy of the Prospectus with or prior to delivery of written
confirmation of the sale by such Holder to the person asserting the claims from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or omission or alleged omission.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company (in the case of any
Note Registration Statement) or Parent (in the case of any Warrant Registration
Statement), and their respective directors and officers, and each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the
23
<PAGE>
Exchange Act) the Company or Parent, as applicable, to the same extent as the
foregoing indemnity from the Company or Parent, as applicable, set forth in
Section 10(a) above, but only with reference to information relating to such
Holder furnished in writing to the Company or Parent, as applicable, by such
Holder expressly for use in such Registration Statement. In no event shall any
Holder, its directors, officers or any person who controls such Holder be liable
or responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, officers or any person who controls
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 10(a) or 10(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 10(a) and 10(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 10(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all
24
<PAGE>
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by a majority of the Holders, in the case of the
parties indemnified pursuant to Section 10(a), and by the Company or Parent, as
applicable, in the case of parties indemnified pursuant to Section 10(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 10 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company (in
the case of any Note Registration Statement) or Parent (in the case of any
Warrant Registration Statement), on the one hand, and the Holders, on the other
hand, from their sale of Transfer Restricted Securities or (ii) if the
allocation provided by clause 10(d)(i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 10(d)(i) above but also the relative fault of the Company
or Parent, as applicable, on the one hand, and of the Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company or Parent, as
applicable, on the one hand, and of the Holder, on the other hand, 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
25
<PAGE>
material fact relates to information supplied by the Company or Parent, as
applicable, on the one hand, or by the Holder, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, Parent and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 10(d) were determined by pro
rata allocation (even if the Holders 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, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 10, no Holder, its
directors, its officers or any person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 10(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
(e) The Company and Parent agree that the indemnity and contribution
provisions of this Section 10 shall apply to Affiliated Market Makers to the
same extent, on the same conditions, as it applies to Holders.
SECTION 11. Rule 144A and Rule 144.
Each of the Company and Parent agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which such person (i) is not subject to Section 13 or 15(d) of the Exchange Act,
to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under
26
<PAGE>
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 12. Miscellaneous.
(a) Remedies. The Company and Parent acknowledge and agree that any
failure by the Company and/or Parent to comply with their respective obligations
under Section 4 or Section 7 hereof may result in material irreparable injury to
the Buyers, the Holders or any Affiliated Market Makers for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Buyers, any
Holder or any Affiliated Market Makers may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 4 hereof and
Parent's obligations under Section 4 and Section 7 hereof. The Company and
Parent further agree to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor Parent will,
on or after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. Neither the
Company nor Parent has previously entered into any agreement granting any
registration rights with respect to its securities to any person other than the
Investor's Agreement dated as of May 22, 1998 among Parent and the investors and
stockholders party thereto as in effect on the date hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's and
Parent's securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of this
clause 12(c)(i), the Company and Parent have obtained the written consent of
Holders of all outstanding Transfer Restricted Securities, (ii) in the case of
all other provisions hereof with respect to the Transfer Restricted Notes, the
Company has obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Notes and (iii) in the case
of all other provisions hereof with respect to the Transfer Restricted Warrant
Securities, Parent has obtained the written consent of Holders of a majority of
the outstanding principal amount of Transfer Restricted Warrant Securities
(excluding
27
<PAGE>
in each case Transfer Restricted Securities held by Parent, the Company and any
Affiliate of the Company or Parent other than the Buyers).
(d) Third Party Beneficiary. The Holders and any Affiliated Market
Makers shall be third party beneficiaries to the agreements made hereunder
between the Company and Parent, on the one hand, and the Buyers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their rights or
the rights of Holders and Affiliated Market Makers hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder of Notes: at the address set forth on the records
of the Registrar under the Indenture or the Notes, as applicable, with
a copy to the Registrar (if other than the Company) under the
Indenture;
(ii) if to a Holder of Warrants and/or Warrant Shares, at the
address set forth on the records of the Company; and
(iii) if to the DLJ Buyers, to:
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, NY 10172
Attention: William F. Dawson, Jr.
Fax: (212) 892-7272
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Richard D. Truesdell, Jr.
Fax: (212) 450-4800
28
<PAGE>
(iv) if to the Company and/or Parent
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Attention: Jim Tate or Stephanie Josephson
Fax: (314) 746-2374
(314) 746-2327
with a copy to:
R. Scott Cohen, Esq.
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, TX 75201-6950
Fax: (214) 746-7777
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee (if there is
a Trustee as of such date) and the Warrant Agent (if there is a Warrant Agent as
of such date) at the address specified in the Indenture and in the terms of the
Warrant, respectively.
Upon the date of filing of any Registration Statement, notice shall be
delivered to any Affiliated Market Makers at the addresses specified by such
Affiliated Market Makers in writing to Parent.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Subscription Agreement, the Indenture or
the Warrants. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by
29
<PAGE>
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
30
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THERMADYNE HOLDINGS CORPORATION.
By:
---------------------------------------
Name:
Title:
THERMADYNE MFG. LLC
By:
---------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By:
---------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By:
---------------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By:
---------------------------------------
Name:
Title:
31
<PAGE>
DLJ DIVERSIFIED PARTNERS, L.P.
By:
---------------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By:
---------------------------------------
Name:
Title:
DLJMB FUNDING II, INC.
By:
---------------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By:
---------------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By:
---------------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
By:
---------------------------------------
Name:
Title:
32
<PAGE>
DLJ ESC II L.P.
By:
---------------------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
By:
---------------------------------------
Name:
Title:
33
Exhibit 5
<TABLE>
Number of Percentage Shared Sole
Shares of Shares Sole Voting Voting Dispositive
DLJ Entity Owned Owned Power Power Power
<S> <C> <C> <C> <C> <C>
DLJ Merchant Banking Partners II, L.P. 2,141,172 55.4% 2,141,172 3,399,089 2,141,172
DLJ Merchant Banking Partners II-A, L.P. 85,271 2.4% 85,271 3,399,089 85,271
DLJ Offshore Partners II, C.V. 105,292 2.9% 105,292 3,399,089 105,292
DLJ Diversified Partners, L.P. 125,183 3.5% 125,183 3,399,089 125,183
DLJ Diversified Partners-A, L.P. 46,489 1.3% 46,489 3,399,089 46,489
DLJMB Funding II, Inc. 387,437 10.6% 387,437 3,399,089 387,437
DLJ Millennium Partners, L.P. 34,621 1.0% 34,621 3,399,089 34,621
DLJ Millennium Partners-A, L.P. 6,752 0.2% 6,752 3,399,089 6,752
DLJ EAB Partners, L.P. 9,614 0.3% 9,614 3,399,089 9,614
UK Investment Plan 1997 Partners 49,368 1.4% 49,368 3,399,089 49,368
DLJ ESC II, L.P. 403,770 11.1% 403,770 3,399,089 403,770
DLJ First ESC, L.P 4,120 0.1% 4,120 3,399,089 4,120
DLJ Merchant Banking II, LLC 2,382,722 61.1% 2,382,722 3,399,089 2,382,722
DLJ Merchant Banking II, Inc. 2,382,722 61.1% 2,382,722 3,399,089 2,382,722
DLJ Diversified Associates LP 171,672 4.8% 171,672 3,399,089 171,672
DLJ Diversified Partners, Inc. 171,672 4.8% 171,672 3,399,089 171,672
DLJ LBO Plans Management Corporation 417,504 11.5% 417,504 3,399,089 417,504
DLJ Capital Investors, Inc. 3,399,089 84.4% 3,399,089 3,399,089 3,399,089
UK Investment Plan 1997, Inc. 49,368 1.4% 49,368 3,399,089 49,368
Donaldson Lufkin & Jenrette, Inc. 3,399,089 84.4% 3,399,089 3,399,089 3,399,089
AXA Financial, Inc.
Finaxa
AXA
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA
Voting Trustee
</TABLE>
Where no number is indicated, see Item 5.
