<PAGE> 1
As filed with the Securities and Exchange Commission on May 20, 1996.
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
THERMADYNE HOLDINGS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 74-2482571
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
RANDALL E. CURRAN
101 SOUTH HANLEY ROAD
101 SOUTH HANLEY ROAD ST. LOUIS, MISSOURI 63105
ST. LOUIS, MISSOURI 63105 (314) 746-2320
(Address, Including Zip Code, of Registrant's (Name, Address, Including Zip Code, and
Principal Executive Offices) Telephone Number, Including Area Code, of
Agent for Service)
</TABLE>
1996 EMPLOYEE STOCK OPTION PLAN
&
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full Title of the Plan)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered (1) Registered (1) Per Share (2) Offering Price (2) Registration Fee
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 Par Value 350,000 Shares $21.75 $7,612,500.00 $2,625.00
=============================================================================================================================
</TABLE>
(1) Shares of common stock, $.01 par value per share ("Common Stock"), of
Thermadyne Holdings Corporation (the "Company") being registered
hereby relate to the 1996 Employee Stock Option Plan and the
Non-Employee Directors Stock Option Plan. Pursuant to Rule 416(a)
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), there is also being registered an indeterminate
amount of additional shares of Common Stock as may become issuable as
a result of stock splits, stock dividends or similar transactions.
(2) In accordance with section (h)(1) of Rule 457 promulgated under the
Securities Act, calculated on the basis of the average of the high and
low price of the Common Stock as reported on the NASDAQ on May 15,
1996.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report on Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock, which is
contained in the Company's Registration Statement on Form 10/A, Amendment No. 2
(File No. 0-23378) filed under Section 12(g) of the Exchange Act on April 28,
1994, including any amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
of the shares of Common Stock offered have been sold or which deregisters all
of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware, a Delaware corporation has
the power, under specified circumstances and subject to certain limitations, to
indemnify its directors, officers, employees and agents in connection with
actions, suits or proceedings brought against them by a third party or in the
right of the corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against liabilities and expenses
incurred in any such action, suit, or proceeding. Article Sixth of the
Restated Certificate of Incorporation of the Company provides for mandatory
indemnification of directors and officers to the fullest extent permitted by
the General Corporation Law of the State of Delaware.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person
thereof in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered pursuant to this Registration Statement, the
Company will, unless in the opinion of counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of Thermadyne Holdings
Corporation. (Incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement on Form 10 (File No. 0-23378) as
filed with the Securities and Exchange Commission on February 7,
1994.)
II-2
<PAGE> 4
4.2 Amended and Restated Bylaws of Thermadyne Holdings Corporation.
(Incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form 10 (File No. 0-23378) as filed with the
Securities and Exchange Commission on February 7, 1994.)
4.3 1996 Employee Stock Option Plan.*
4.4 Non-Employee Directors Stock Option Plan.*
5. Opinion of Weil, Gotshal & Manges LLP.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24. Power of Attorney (see pages II-5 and II-6 of this Registration
Statement).
_______________________________
* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement to include any material
information with respect to the plan of distribution
not previously disclosed in this Registration
Statement or any material change to such information
in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post- effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
II-3
<PAGE> 5
(b) The undersigned hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act
that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) See Item 6.
[The remainder of this page is intentionally left blank.]
II-4
<PAGE> 6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Clayton, State of Missouri, on this
20th day of May, 1996.
THERMADYNE HOLDINGS CORPORATION
By: /s/ JAMES H. TATE
---------------------------------
James H. Tate
Senior Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears
below hereby appoints James H. Tate as his attorney-in-fact to sign on his
behalf individually and in the capacity stated below and to file all
post-effective amendments to this Registration Statement, which amendments may
make such changes in and additions to this Registration Statement as such
attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ RANDALL E. CURRAN Chairman of the Board of Directors, May 20, 1996
---------------------------------------------- President and Chief Executive Officer
Randall E. Curran (Principal Executive Officer of the
Registrant)
/s/ JAMES H. TATE Senior Vice President and Chief May 20, 1996
---------------------------------------------- Financial Officer (Principal Financial
James H. Tate and Accounting Officer of the
Registrant); Director
/s/ RICHARD L. BERGER Director May 20, 1996
----------------------------------------------
Richard L. Berger
/s/ FLETCHER L. BYROM Director May 20, 1996
----------------------------------------------
Fletcher L. Byrom
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ HENRY L. DRUKER Director May 20, 1996
----------------------------------------------
Henry L. Druker
/s/ TALTON R. EMBRY Director May 20, 1996
----------------------------------------------
Talton R. Embry
/s/ CHARLES F. MORAN Director May 20, 1996
----------------------------------------------
Charles F. Moran
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
No. Description Page
------- ----------- ------------
<S> <C>
4.1 Restated Certificate of Incorporation of Thermadyne Holdings Corporation.
(Incorporated by reference to Exhibit 3.1 of the Company's Registration Statement on
Form 10 (File No. 0-23378) as filed with the Securities and Exchange Commission on
February 7, 1994.)
4.2 Amended and Restated Bylaws of Thermadyne Holdings Corporation. (Incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on Form 10 (File No.
0-23378) as filed with the Securities and Exchange Commission on February 7, 1994.)
4.3 1996 Employee Stock Option Plan.
4.4 Non-Employee Directors Stock Option Plan.
5. Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24. Power of Attorney (see pages II-5 and II-6 of this Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.3
THERMADYNE HOLDINGS CORPORATION
1996 EMPLOYEE STOCK OPTION PLAN
INTRODUCTION. Thermadyne Holdings Corporation, a Delaware corporation (the
"Company"), hereby establishes the Thermadyne Holdings Corporation 1996 Employee
Stock Option Plan (the "Plan"), effective on the Effective Date (as defined
below).
1. PURPOSE. The purposes of the Plan are (i) to provide a means by which
employees can acquire or increase equity ownership in the Company, thereby
strengthening their commitment to the success of the Company and stimulating
their efforts on behalf of the Company, (ii) to encourage shareholder
perspectives through employee stock ownership, and (iii) to assist the Company
in attracting new employees and retaining existing employees.
2. DEFINITIONS.
As used in the Plan, terms defined parenthetically immediately after their
use have the respective meanings provided by such definitions and the terms set
forth below have the following meanings (such meanings to be applicable to both
the singular and plural forms):
(a) "Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person. As used in
this definition, "control" means the power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
(b) "Award" means options, including incentive stock options, granted under
the Plan.
(c) "Award Agreement" means the written agreement by which any Award shall
be evidenced.
(d) "Board" means the Board of Directors of the Company.
(e) "Change of Control" means any one or more of the following:
(i) the acquisition or holding by any Person or "group" within the
meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act (other than by the
Company or any Subsidiary, any employee benefit plan of the Company or a
Subsidiary, Fidelity or Magten) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the 1934 Act) of 30% or more of the
then-outstanding Stock; except that no such Person or group shall be deemed
to own beneficially (1) any securities held by the Company or a Subsidiary
or any employee benefit plan (or any related trust) of the Company or a
Subsidiary, and (2) any securities acquired pursuant to a benefit plan of
the Company or a Subsidiary; provided, however, that no Change of Control
shall be deemed to have occurred solely by reason of any such acquisition
by a corporation with respect to which, after such acquisition, more than
70% of the then-outstanding common shares of such corporation are
then-beneficially owned, directly or indirectly, by the Persons who were
the beneficial owners of the Stock immediately before such acquisition in
substantially the same proportions as their respective ownership,
immediately before such acquisition, of the then-outstanding Stock; or
(ii) the acquisition or holding by Fidelity or Magten of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act)
of 60% or more of the then-outstanding Stock; except that no such Person
shall be deemed to own beneficially (1) any securities held by the Company
or a Subsidiary or any employee benefit plan (or any related trust) of the
Company or a Subsidiary, and (2) any securities acquired pursuant to a
benefit plan of the Company or a Subsidiary; or
(iii) individuals who, as of the Effective Date, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided that any individual who becomes a director
after the Effective Date whose election or nomination for election by the
Company's stockholders
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<PAGE> 2
was approved by at least a majority of the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office
is in connection with an actual or threatened election contest relating to
the election of the directors of the Company (as such terms are used in
Rule 14a-11 under the 1934 Act)) shall be deemed to be members of the
Incumbent Board; or
(iv) approval by the stockholders of the Company of (A) a merger,
reorganization or consolidation with respect to which Persons who were the
respective beneficial owners of the Stock immediately before such merger,
reorganization or consolidation do not, immediately thereafter,
beneficially own, directly or indirectly, more than 70% of the
then-outstanding common shares of the corporation resulting from such
merger, reorganization or consolidation, (B) a liquidation or dissolution
of the Company or (C) the sale or other disposition of all or substantially
all of the assets of the Company.
(f) "Code" means the Internal Revenue Code of 1986, as amended, and
regulations and rulings thereunder. References to a particular section of the
Code include references to successor provisions.
(g) "Committee" means the committee of the Board appointed pursuant to
Section 4(a).
(h) "Company" -- see the introductory paragraph.
(i) "Disability" means, for purposes of the exercise of an incentive stock
option after termination of employment, a disability within the meaning of
Section 22(e)(3) of the Code, and for all other purposes, a mental or physical
condition which, in the judgment of the Committee, renders a Grantee unable or
incompetent to carry out the job responsibilities which such Grantee held or the
tasks to which such Grantee was assigned at the time the disability was
incurred, and which is expected to be permanent or for an indefinite duration
exceeding one year.
(j) "Disqualifying Disposition" -- see Section 6(c)(v).
(k) "Effective Date" means October 26, 1995.
(l) "Fair Market Value" of a security means, as of any applicable date:
(i) if the security is listed for trading on a national securities
exchange or the NASDAQ National Market, the closing price, regular way, of
the security as reported on the consolidated transaction reporting system
applicable to such security, or if no such reported sale of the security
shall have occurred on such date, on the next preceding date on which there
was such a reported sale, or
(ii) if the security is not listed for trading on a national
securities exchange or the NASDAQ National Market, but is listed on the
NASDAQ SmallCap Market, the average of the closing bid and asked prices,
regular way, on the NASDAQ SmallCap Market or, if no such prices have been
so reported for such date, on the latest preceding date for which such
prices were so reported, or
(iii) if the security is not listed for trading on a national
securities exchange, the NASDAQ National Market or the NASDAQ SmallCap
Market, the fair market value of the security as determined in good faith
by the Board.
(m) "Fidelity" means one or more funds or accounts managed or advised by
Fidelity Management Research Company or its Affiliates.
(n) "Grant Date" -- see Section 6(a)(i).
(o) "Grantee" means an individual who has been granted an Award.
(p) "Immediate Family" means, with respect to a particular Grantee, such
Grantee's spouse, children and grandchildren.
(q) "including" or "includes" means "including, without limitation," or
"includes, without limitation," respectively.
(r) "Magten" means one or more funds or accounts managed or advised by
Magten Asset Management Corporation or its Affiliates.
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<PAGE> 3
(s) "Minimum Consideration" means $.01 per share of Stock or such other
amount that is from time to time considered to be capital for purposes of
Section 154 of the Delaware General Corporation Law.
(t) "1934 Act" means the Securities Exchange Act of 1934. References to a
particular section of, or rule under, the 1934 Act include references to
successor provisions.
(u) "Option Price" means the per share exercise price of Stock subject to
an option.
(v) "Option Term" means, in respect of a stock option, the period beginning
on the Grant Date of such option and ending on the expiration date of such
option as specified in the Award Agreement for such option and as may, in the
discretion of the Committee and consistently with the provisions of the Plan, be
extended from time to time prior to the expiration date then in effect.
(w) "Person" means any individual, sole proprietorship, corporation,
partnership, limited liability company, trust, unincorporated association,
mutual company, joint stock company, estate, union, employee organization, or
government or agency or political subdivision thereof.
(x) "Plan" -- see the introductory paragraph.
(y) "Retirement" means a termination of employment with the Company and its
Subsidiaries at any time after attaining age 62.
(z) "SEC" means the Securities and Exchange Commission.
(aa) "Section 16 Person" means a person who is subject to potential
liability under Section 16(b) of the 1934 Act with respect to transactions
involving equity securities of the Company.
(ab) "Stock" means the common stock, $.01 par value, of the Company.
(ac) "Subsidiary" means, for purposes of grants of incentive stock options,
a corporation as defined in Section 424(f) of the Code (with the Company being
treated as the employer corporation for purposes of this definition) and, for
all other purposes, a United States or foreign corporation with respect to which
the Company owns, directly or indirectly, 25% or more of the then-outstanding
common shares.
(ad) "10% Owner" means a Person who owns stock (including stock treated as
owned under Section 424(d) of the Code) possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any Subsidiary.
3. SCOPE OF THE PLAN. Subject to Sections 3 and 20, an aggregate of 300,000
shares of Stock are hereby made available and are reserved for delivery pursuant
to the Plan. Such shares may be treasury shares or newly-issued shares. If and
to the extent an Award expires or terminates for any reason without having been
exercised in full (including a cancellation and regrant of an option), the
shares of Stock associated with such Award shall become available for other
Awards.
4. ADMINISTRATION.
(a) Subject to Section 4(b), the Plan shall be administered by a committee
("Committee") which shall consist of not less than three persons who are
directors of the Company and qualify as "outside directors" as defined for
purposes of the regulations under Code Section 162(m). Membership on the
Committee shall from time to time be increased or decreased and shall be subject
to such conditions, in each case as the Board deems appropriate to permit
transactions in Stock pursuant to the Plan to be exempt from potential liability
under Section 16(b) of the 1934 Act pursuant to SEC Rule 16b-3 thereunder.
(b) The Board may reserve to itself or delegate to another committee of the
Board any or all of the authority of the Committee with respect to Awards to
Grantees who are not Section 16 Persons at the time any such delegated authority
is exercised. Such other committee may consist of two or more directors who may,
but need not be, officers or employees of the Company or a Subsidiary. To the
extent that the Board has reserved to itself or delegated to such other
committee the authority of the Committee, all references to the Committee in the
Plan shall be to the Board or such other committee.
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<PAGE> 4
(c) Subject to the express provisions of the Plan, the Committee has full
and final authority and sole discretion as follows:
(i) to determine when and to whom Awards should be granted and the
terms and conditions applicable to each Award;
(ii) to interpret the Plan and to make all determinations necessary or
advisable for the administration of the Plan;
(iii) to make, amend, and rescind rules relating to the Plan,
including rules with respect to the exercisability of Awards upon the
termination of employment of a Grantee;
(iv) to determine the terms and conditions of all Award Agreements
(which need not be identical) and, with the consent of the Grantee, to
amend any such Award Agreement at any time, among other things, to permit
transfers of such Awards to the extent permitted by the Plan; provided that
the consent of the Grantee shall not be required for any amendment which
(A) does not adversely affect the rights of the Grantee, or (B) is
necessary or advisable (as determined by the Committee) to carry out the
purpose of the Award as a result of any new or change in existing
applicable law;
(v) to cancel, with the consent of the Grantee, outstanding Awards and
to grant new Awards in substitution therefor;
(vi) to accelerate the exercisability (including exercisability within
a period of less than one year after the Grant Date) of, and to accelerate
or waive any or all of the terms and conditions applicable to, any Award or
any group of Awards for any reason and at any time, including in connection
with a termination of employment;
(vii) subject to Section 6(a)(ii) and 6(c)(i), to extend the time
during which any Award or group of Awards may be exercised;
(viii) to make such adjustments or modifications to Awards to Grantees
working outside the United States as are advisable to fulfill the purposes
of the Plan;
(ix) to impose such additional terms and conditions upon the grant or
exercise of Awards as the Committee may, before or concurrently with the
grant thereof, deem appropriate, including limiting the percentage of
Awards which may from time to time be exercised by a Grantee; and
(x) to take any other action with respect to any matters relating to
the Plan for which it is responsible.
The determination of the Committee on all matters relating to the Plan or any
Award Agreement shall be final. No member of the Committee shall be liable for
any action or determination made in good faith with respect to the Plan or any
Award.
5. ELIGIBILITY. The Committee may in its discretion grant Awards to any
full-time employee (including any officer) of the Company or any Subsidiary. A
Grantee may, if otherwise eligible, be granted any additional Awards.
6. CONDITIONS TO GRANTS.
(a) General Conditions.
(i) The Grant Date of an Award shall be the date on which the
Committee grants the Award or such later date as specified in advance by
the Committee.
(ii) Any provision of the Plan to the contrary notwithstanding, the
Option Term shall under no circumstances extend more than 10 years after
the Grant Date, and shall be subject to earlier termination as herein
provided.
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<PAGE> 5
(iii) To the extent not set forth in the Plan, the terms and
conditions of each Award shall be set forth in an Award Agreement.
(iv) The number of shares for which options may be granted to any
Grantee in any calendar year shall not exceed 100,000.
(b) Grant of Options. No later than the Grant Date of any option, the
Committee shall determine the Option Price of such option. The Option Price of
an option shall not be less than 100% (110% in the case of an incentive stock
option granted to a 10% Owner) of the Fair Market Value of the Stock on the
Grant Date.
(c) Grant of Incentive Stock Options. At the time of the grant of any
option, the Committee may in its discretion designate that such option shall be
made subject to additional restrictions to permit it to qualify as an "incentive
stock option" under the requirements of Section 422 of the Code. Any option
designated as an incentive stock option:
(i) shall be for a period of not more than 10 years (five years in the
case of an incentive stock option granted to a 10% Owner) from the Grant
Date, and shall be subject to earlier termination as provided herein or in
the applicable Award Agreement;
(ii) shall not have an aggregate Fair Market Value (determined for
each incentive stock option at its Grant Date) of Stock with respect to
which incentive stock options are exercisable for the first time by such
Grantee during any calendar year (under the Plan and any other employee
stock option plan of the Grantee's employer or any parent or Subsidiary
thereof ("Other Plans")), determined in accordance with the provisions of
Section 422 of the Code, which exceeds $100,000 (the "$100,000 Limit");
(iii) shall, if the aggregate Fair Market Value of Stock (determined
on the Grant Date) with respect to the portion of such grant which is
exercisable for the first time during any calendar year ("Current Grant")
and all incentive stock options previously granted under the Plan and any
Other Plans which are exercisable for the first time during a calendar year
("Prior Grants") would exceed the $100,000 Limit, be exercisable as
follows:
(A) the portion of the Current Grant which would, when added to any
Prior Grants, be exercisable with respect to Stock which would have an
aggregate Fair Market Value (determined as of the respective Grant Date
for such options) in excess of the $100,000 Limit shall, notwithstanding
the terms of the Current Grant, be exercisable for the first time by the
Grantee in the first subsequent calendar year or years in which it could
be exercisable for the first time by the Grantee when added to all Prior
Grants without exceeding the $100,000 Limit; and
(B) if, viewed as of the date of the Current Grant, any portion of
a Current Grant could not be exercised under the preceding provisions of
this Section during any calendar year commencing with the calendar year
in which it is first exercisable through and including the last calendar
year in which it may by its terms be exercised, such portion of the
Current Grant shall not be an incentive stock option, but shall be
exercisable as a separate option at such date or dates as are provided
in the Current Grant;
(iv) shall be granted within 10 years from the earlier of the date the
Plan is adopted or the date the Plan is approved by the stockholders of the
Company;
(v) shall require the Grantee to notify the Committee of any
disposition of any Stock issued pursuant to the exercise of the incentive
stock option under the circumstances described in Section 421(b) of the
Code (relating to certain disqualifying dispositions) (any such
circumstance, a "Disqualifying Disposition"), within 10 days of such
Disqualifying Disposition; and
(vi) shall by its terms not be assignable or transferable other than
by will or the laws of descent and distribution and may be exercised,
during the Grantee's lifetime, only by the Grantee; provided, however, that
the Grantee may, to the extent provided in the Plan in any manner specified
by the Committee, designate in writing a beneficiary to exercise his or her
incentive stock option after the Grantee's death.
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<PAGE> 6
Notwithstanding the foregoing and Section 4(c)(iv), the Committee may, without
the consent of the Grantee, at any time before the exercise of an option
(whether or not an incentive stock option), take any action necessary to prevent
such option from being treated as an incentive stock option.
7. NON-TRANSFERABILITY. Each Award granted hereunder shall not be
assignable or transferable other than by will or the laws of descent and
distribution and may be exercised, during the Grantee's lifetime, only by the
Grantee or his or her guardian or legal representative, except that, subject to
Section 6(c)(vi) in respect of incentive stock options, a Grantee may in a
manner and to the extent permitted by the Committee (a) designate in writing a
beneficiary to exercise an Award after his or her death (provided, however, that
no such designation shall be effective unless received by the office of the
Company designated for that purpose prior to the Grantee's death) and (b) if the
Award Agreement expressly permits, transfer an Option (other than an incentive
stock option) for no consideration to any (i) member of the Grantee's Immediate
Family, (ii) trust solely for the benefit of the Grantee or members of the
Grantee's Immediate Family, (iii) partnership whose only partners are the
Grantee or members of the Grantee's Immediate Family, or (iv) revocable inter
vivos trust of which the Grantee is both the settlor and a trustee; provided,
however, that the transferee shall remain subject to all of the terms and
conditions applicable to such Award prior to such transfer.
8. EXERCISE.
(a) Subject to Section 4(c)(iii) and such terms and conditions as the
Committee may impose, each option shall become exercisable with respect to 20%
of the shares subject thereto on each of the first five anniversaries of the
Grant Date of such option unless the Committee provides otherwise in the Award
Agreement.
(b) An option shall be exercised by the delivery to the Company during the
Option Term of (i) written notice of intent to purchase a specific number of
shares of Stock subject to the option, (ii) payment in full of the Option Price
of such specific number of shares of Stock, and (iii) cash in an amount
sufficient to satisfy all federal, state, and local tax withholding requirements
related to the exercise ("Required Tax Withholding"). Payment of the Option
Price may be made by any one or more of the following means:
(i) cash;
(ii) subject to the prior approval of the Committee, Stock held by the
Grantee for at least six months before exercise of the option, valued at
its Fair Market Value on the date of exercise; or
(iii) through simultaneous sale through a broker of shares acquired on
exercise, as permitted under Regulation T of the Federal Reserve Board.
In the discretion of the Committee, payment of the Option Price may also be made
in accordance with Section 9 and Required Tax Withholding may also be satisfied
in accordance with Section 10(a).
(c) No option shall be exercisable by a Section 16 Person during the first
six months after its Grant Date, except as may from time to time be permitted by
the Committee.
(d) In the event of a Change of Control, all unvested Awards shall become
immediately fully exercisable, except as otherwise provided in Section 8(c).
9. LOANS AND GUARANTEES. The Committee may in its discretion allow a
Grantee to defer payment to the Company of all or any portion of (i) the Option
Price of an option, and/or (ii) any taxes associated with the exercise of an
Award, or cause the Company to guarantee a loan from a third party to the
Grantee, in an amount equal to all or any portion of such Option Price, and/or
any related taxes. Any such payment deferral or guarantee by the Company shall
be on such terms and conditions as the Committee may determine. Notwithstanding
the foregoing, a Grantee shall not be entitled to defer the payment of such
Option Price or any related taxes unless the Grantee (i) enters into a binding
obligation to pay the deferred amount and (ii) except with respect to treasury
shares, pays upon exercise of an option an amount at least equal to the
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Minimum Consideration therefor. If the Committee has permitted a payment
deferral or caused the Company to guarantee a loan pursuant to this Section,
then the Committee may require the immediate payment of such deferred amount or
the immediate release of such guarantee upon the Grantee's termination of
employment or if the Grantee sells or otherwise transfers his or her shares of
Stock purchased pursuant to such deferral or guarantee. The Committee may at any
time in its discretion forgive the repayment of any or all of the principal of,
or interest on, any such deferred payment obligation.
10. MANDATORY TAX WITHHOLDING.
(a) The Committee may in its discretion allow Required Tax Withholding to
be satisfied in whole or in part by the withholding of such sums from
compensation otherwise due to the Grantee or from any shares of Stock due to the
Grantee under the Plan.
(b) If any Disqualifying Disposition is made with respect to shares of
Stock acquired under an incentive stock option granted pursuant to the Plan,
then the person making such Disqualifying Disposition shall remit to the Company
an amount sufficient to satisfy all Required Tax Withholding thereby incurred;
provided that, in lieu of or in addition to the foregoing, the Company shall
have the right to withhold such sums from compensation otherwise due to the
Grantee or from any shares of Stock due to the Grantee under the Plan.
11. ELECTIVE SHARE WITHHOLDING.
(a) Subject to Section 11(b), a Grantee may, with the Committee's prior
approval, elect the withholding ("Share Withholding") by the Company of a
portion of the shares of Stock otherwise deliverable to such Grantee upon the
exercise of an Award having a Fair Market Value equal to (i) the minimum amount
necessary to satisfy required federal, state, or local tax withholding liability
attributable to the exercise; or (ii) a greater amount, not to exceed the
estimated total amount of such Grantee's tax liability with respect to the
exercise.
(b) Each Share Withholding election shall be subject to the following
conditions:
(i) any Grantee's election shall be subject to the Committee's
discretion to revoke the Grantee's right to elect Share Withholding at any
time whether or not the Committee has reserved the right to do so;
(ii) the Grantee's election must be made before the date (the "Tax
Date") on which the amount of tax to be withheld is determined;
(iii) the Grantee's election shall be irrevocable;
(iv) a Section 16 Person may not elect Share Withholding within six
months after the grant of the related option (except if the Grantee dies or
incurs a Disability before the end of the six-month period); and
(v) except to the extent such condition may be waived by the
securities law counsel to the Company, a Section 16 Person must elect Share
Withholding either six months before the Tax Date or during the 10-business
day period beginning on the third business day after the release of the
Company's quarterly or annual summary statement of sales and earnings.
12. TERMINATION OF EMPLOYMENT.
(a) On Account of Death or Disability. Except as otherwise provided by the
Committee in the Award Agreement, if a Grantee's employment terminates on
account of death or Disability, then any unexercised option may be exercised, in
whole or in part, whether or not exercisable immediately before such termination
of employment, within one year after such termination of employment (but only
during the Option Term) by the Grantee or, after his or her death, by (A) his or
her personal representative or by the person to whom the option is transferred
by will or the applicable laws of descent and distribution, (B) the Grantee's
beneficiary
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designated in accordance with Sections 6(c)(vi) or 7, or (C) the then-acting
trustee of the trust described in Section 7.
(b) On Account of Retirement. Except as otherwise provided by the Committee
in the Award Agreement, if a Grantee's employment terminates on account of
Retirement, then any unexercised option may be exercised, in whole or in part,
but only to the extent exercisable immediately before such termination of
employment, within one year after such termination of employment (but only
during the Option Term).
(c) Any Other Reason. Except as otherwise provided by the Committee in the
Award Agreement, if a Grantee's employment terminates for any reason other than
for Retirement, death, or Disability, then any unexercised option may be
exercised, in whole or in part, but only to the extent exercisable immediately
before the Grantee's termination of employment, not later than one year after
such termination of employment (but only during the Option Term).
(d) Extended Exercisability. If the Grantee has entered into an agreement
with the Company not to sell any shares of Stock (or the capital stock of a
successor to the Company) for a specified period after the consummation of a
business combination between the Company and another corporation or entity (the
"Specified Period"), such option may be exercised in whole or in part until the
later of the end of the post-termination period specified in Sections 12(a),
12(b) or 12(c), as applicable, or 10 business days after the expiration of the
Specified Period.
(e) Extension of Term. In the event of a termination of the Grantee's
employment, the term of any Award (whether or not exercisable immediately before
such termination) which would otherwise expire after the Grantee's termination
of employment but before the end of the post-termination period described in
Sections 12(a), 12(b) or 12(c), as applicable, for exercise of Awards may, in
the Committee's discretion, be extended so as to permit any unexercised portion
thereof to be exercised at any time within such period. The Committee may
further extend the period of exercisability to permit any unexercised portion
thereof to be exercised within a specified period provided by the Committee.
13. PLANS OF NON-U.S. SUBSIDIARIES. The Committee may in its discretion
authorize any non-U.S. Subsidiary to adopt a plan for granting Awards ("Non-U.S.
Plan"). All Awards granted under such Non-U.S. Plan shall be treated as grants
under the Plan. Such Non-U.S. Plans shall have such provisions as the Committee
permits not inconsistent with the provisions of the Plan. Awards granted under a
Non-U.S. Plan shall be governed by the terms of the Plan, except to the extent
that the provisions of the Non-U.S. Plan are more restrictive than the
provisions of the Plan, in which case the Non-U.S. Plan shall control.
14. SUBSTITUTED AWARDS. If the Committee cancels any Award (granted under
this Plan or any plan of any entity acquired by the Company or a Subsidiary),
the Committee may in its discretion substitute a new Award therefor upon such
terms and conditions consistent with the Plan as the Committee may determine;
provided, that (a) the Option Price of any new option shall not be less than
100% (110% in the case of an incentive stock option granted to a 10% Owner) of
the Fair Market Value of a share of Stock on the date of grant of the new Award;
(b) the Grant Date of the new Award shall be the date on which such new Award is
granted; and (c) no Section 16 Person may exercise a substituted option within
six months after the Grant Date (calculated without reference to this Section)
of such substituted option, except as the Committee may otherwise provide.
15. SECURITIES LAW MATTERS. If the Committee deems necessary to comply with
any applicable securities law, the Committee may require a written investment
intent representation by the Grantee and may require that a restrictive legend
be affixed to certificates for shares of Stock. If, based upon the advice of
counsel for the Company, the Committee determines that the exercise of any Award
would violate any applicable provision of (i) federal or state securities laws
or (ii) the listing requirements of any national securities exchange or national
market system on which are listed any of the Company's equity securities, then
the Committee may postpone any such exercise, but the Company shall use all
reasonable efforts to cause such exercise to comply with all such provisions at
the earliest practicable date.
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16. NO EMPLOYMENT RIGHTS. Neither the establishment of the Plan, nor the
grant of any Award shall (a) give any Grantee the right to remain employed by
the Company or any Subsidiary or to any benefits not specifically provided by
the Plan or (b) modify the right of the Company or any Subsidiary to modify,
amend, or terminate any employee benefit plan.
17. RIGHTS AS A STOCKHOLDER. A Grantee shall not, by reason of any Award,
have any right as a stockholder of the Company with respect to the shares of
Stock which may be deliverable upon exercise of such Award until such shares
have been delivered to him.
18. NATURE OF PAYMENTS. Awards shall constitute special incentive payments
to the Grantee and shall not be taken into account in computing the amount of
salary or compensation of the Grantee for the purposes of determining any
pension, retirement, death or other benefits under (a) any pension, retirement,
profit-sharing, bonus, life insurance or other employee benefit plan of the
Company or any Subsidiary or (b) any agreement between the Company or any
Subsidiary, on the one hand, and the Grantee, on the other hand, except as such
plan or agreement shall otherwise expressly provide.
19. NON-UNIFORM DETERMINATIONS. The Committee's determinations under the
Plan need not be uniform and may be made by the Committee selectively among
persons who receive, or are eligible to receive, Awards, whether or not such
persons are similarly situated. Without limiting the generality of the
foregoing, the Committee shall be entitled, to enter into non-uniform and
selective Award Agreements as to (a) the identity of the Grantees, (b) the terms
and provisions of Awards, and (c) the treatment of terminations of employment.
20. ADJUSTMENTS. The Committee shall make equitable adjustment of (i) the
numbers of shares of Stock available under Sections 3 and 6(a)(iv), (ii) the
number of shares of Stock covered by an Award, and (iii) the Option Price of all
outstanding options to reflect a stock dividend, stock split, reverse stock
split, share combination, recapitalization, merger, consolidation, asset
spin-off, split-off, reorganization, rights offering, liquidation or similar
event, of or by the Company.
21. STOCKHOLDER APPROVAL; AMENDMENTS.
(a) No Option shall become exercisable until at least six months after the
Plan has been approved by the holders of a majority of the shares of Common
Stock present and entitled to vote thereon at a meeting of the stockholders of
the Company. If such approval is not obtained on or before the first anniversary
of the Effective Date, all outstanding Options shall expire, no additional
Options shall be granted and the Plan shall terminate.
(b) The Board may from time to time in its discretion amend the Plan
without the approval of the Company's stockholders, except as such stockholder
approval may be required (a) to permit the grant of Awards to Section 16 Persons
under, and transactions in Stock by Section 16 Persons pursuant to, the Plan to
be exempt from potential liability under Section 16(b) of the 1934 Act or (b)
under the listing requirements of any securities exchange or national market
system on which are listed the Company's equity securities.
22. TERMINATION OF THE PLAN. The Plan shall terminate on the tenth (10th)
anniversary of the Effective Date or at such earlier time as the Board may
determine. No termination shall affect any Award then outstanding under the
Plan.
23. NO ILLEGAL TRANSACTIONS. The Plan and all Awards granted pursuant to it
are subject to all applicable laws and regulations. Notwithstanding any
provision of the Plan or any Award, Grantees shall not be entitled to exercise
Awards, and the Company shall not be obligated to deliver any Stock, if such
exercise or delivery would constitute a violation by the Grantee or the Company
of any applicable law or regulation.
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24. CONTROLLING LAW. The law of Delaware, except its law with respect to
choice of law, shall control all matters relating to the Plan.
25. SEVERABILITY. If any part of the Plan is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any other part of the Plan. Any Section
or part of a Section so declared to be unlawful or invalid shall, if possible,
be construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful and
valid.
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EXHIBIT 4.4
THERMADYNE HOLDINGS CORPORATION
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of the Thermadyne Holdings Corporation Non-Employee Directors
Stock Option Plan (as set forth herein and as amended from time to time, the
"Plan") is to encourage qualified persons to become and remain directors of
Thermadyne Holdings Corporation, a Delaware corporation (the "Company"), and to
provide directors of the Company with a direct stake in its success.
ARTICLE II
DEFINITIONS
2.1 "Article" means an Article of this Plan.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Common Stock" means the common stock, par value $0.01 per share, of
the Company.
2.4 "Director" means a member of the Board.
2.5 "Effective Date" means October 26, 1995.
2.6 "Eligible Director" means a Director who is not an employee of the
Company or any of its subsidiaries as of the date of any grant of an Option to
him.
2.7 "Exchange Act" means the Securities Exchange Act of 1934.
2.8 "Fair Market Value" of a security means, as of any applicable date:
(i) if the security is listed for trading on a national securities
exchange or the NASDAQ National Market, the closing price, regular way, of
the security as reported on the consolidated transaction reporting system
applicable to such security, or if no such reported sale of the security
shall have occurred on such date, on the next preceding date on which there
was such a reported sale, or
(ii) if the security is not listed for trading on a national
securities exchange or the NASDAQ National Market, but is listed on the
NASDAQ SmallCap Market, the average of the closing bid and asked prices,
regular way, on the NASDAQ SmallCap Market or, if no such prices shall have
been so reported for such date, on the latest preceding date for which such
prices were so reported.
2.9 "Grantee" means the holder of an Option or any person entitled to
exercise an Option under Article VI.
2.10 "Option" means a right to purchase Common Stock granted under this
Plan.
2.11 "Term" shall have the meaning provided in Article 5.3.
ARTICLE III
ADMINISTRATION
The Plan is intended to allow Eligible Directors to receive Options without
such Options causing them to cease to be "disinterested persons" (within the
meaning of Rule 16b-3 (or any successor rule) under the Exchange Act) with
respect to other stock plans of the Company. Accordingly, the Plan is intended
not to require discretionary action by any administrative body with regard to
any transaction under the Plan. Subject to the provisions of the Plan, the Board
shall have the power to construe and interpret the Plan, to determine
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all questions (including factual questions) arising thereunder, and to adopt and
amend such rules for the administration of the Plan as it may deem desirable;
provided, however, that no such interpretation or rule shall change the number
of Options that may be granted under the Plan or the terms upon which, or the
times at which, or the periods within which, such Options may be exercised. Any
decision of the Board in the administration of the Plan shall be final.
ARTICLE IV
AMOUNT OF COMMON STOCK
The aggregate number of shares of Common Stock in respect of which Options
may be exercised shall not exceed 50,000, subject to adjustment pursuant to
Article VII. Such shares of Common Stock may be either authorized but unissued
shares or previously-issued shares reacquired by the Company. If any Options
terminate or expire without being exercised in whole or in part, new Options may
be granted covering the shares not purchased under such lapsed Options.
ARTICLE V
GRANT OF OPTIONS
5.1 Initial Grants of Options. On the date of the regular meeting of the
Board during the fourth quarter of 1995, each Eligible Director shall
automatically be granted an Option for 5,000 shares of Common Stock. Thereafter,
subject to Section 8.1, each new Eligible Director shall be granted an Option
for 5,000 shares upon election to the Board.
5.2 Subsequent Grants of Options. Subject to Section 8.1, on November 1,
1996 and each November 1 thereafter, each Eligible Director shall automatically
be granted an Option for 1,000 shares of Common Stock.
5.3 Term of Options. Each Option shall have a term ("Term") of 10 years
beginning on the date of grant, unless earlier terminated as provided herein.
5.4 Exercise Price. The exercise price per share for each Option shall be
100% of the Fair Market Value of a share of Common Stock on the date of grant,
subject to adjustment pursuant to Article VII.
5.5 Option Agreements. Each Option shall be evidenced by an agreement in
such form as the Board shall prescribe from time to time and shall be consistent
with the Plan.
ARTICLE VI
EXERCISE OF OPTIONS
6.1 Vesting. Subject to Section 8.1, each outstanding Option shall be fully
exercisable at any time on or after its date of grant.
6.2 Exercise. An Option shall be exercised by delivery during the Term to
the Company of (i) written notice of the exercise specifying the number of
shares to be purchased and (ii) full payment in cash for the shares of Common
Stock being acquired thereunder.
6.3 Exercise After Termination of Directorship. If a person shall cease to
be a Director for any reason while holding an unexpired Option that has not been
fully exercised, such Option shall thereupon terminate; provided that such
person, or in the case of his death or adjudication of incompetency, his
executor, administrator, distributees, guardian or legal representative, as the
case may be, may exercise the Option (to the extent that it was exercisable
pursuant to Section 6.1 on the date the person ceased to be a Director) at any
time until the earlier to occur of (i) one year after the date such person
ceased to be a Director, or (ii) the expiration of the Term of such Option.
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ARTICLE VII
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
7.1 Adjustments. If the outstanding Common Stock is changed by reason of
reorganization, merger, consolidation, recapitalization, reclassification, stock
split, reverse stock split, stock dividend, rights offering, combination,
spinoff, exchange of shares, or the like, an appropriate adjustment shall be
made by the Board to (i) the aggregate number of shares then-remaining available
under the Plan, (ii) the number of shares of Common Stock in respect of which
Options are subsequently to be granted, and (iii) to the extent that the
following adjustments are necessary to preserve the economic value of
unexercised Options, the number or type of shares of capital stock subject to,
and the exercise price of, outstanding Options.
7.2 No Fractional Shares. If a fraction of a share would otherwise result
from any adjustment pursuant to Section 7.1, the adjusted share amount shall be
reduced to the next lower whole number.
ARTICLE VIII
MISCELLANEOUS
8.1 Stockholder Approval. No Option shall become exercisable until after
the Plan has been approved by the holders of a majority of the shares of Common
Stock present and entitled to vote thereon at a meeting of the stockholders of
the Company. If such approval is not obtained on or before the first anniversary
of the Effective Date, all outstanding Options shall expire and no additional
Options shall be granted.
8.2 Options Non-Transferable. An Option shall not be transferable by its
Grantee except by will or the laws of descent and distribution and shall be
exercisable during the Grantee's lifetime only by the Grantee or his or her
guardian or legal representative; provided, however, that a Grantee may in a
manner and to the extent permitted by the Board (a) designate in writing a
beneficiary to exercise an Award after his or her death and (b) transfer an
option to a revocable, inter vivos trust as to which the Grantee is the settlor
and trustee; provided, however, that a transfer of an Award shall be effective
only if the Company shall have received an opinion of its counsel to the effect
that the restrictions of this Section 8.2 are not required to allow such an
Award to be exempt from potential liability under Section 16(b) of the 1934 Act
pursuant to SEC Rule 16b-3 thereunder.
8.3 Expenses. The expenses of the Plan shall be borne by the Company. Any
taxes imposed on a Grantee upon exercise of an Option shall be paid by such
Grantee.
8.4 No Right to Re-Election. Neither the Plan nor any action taken
hereunder shall be construed as giving any Director any right to be retained or
re-elected as a Director.
8.5 Securities Registration. The Company shall not be obligated to deliver
any shares of Common Stock hereunder until such shares have been listed on each
securities exchange or national market system on which the Common Stock may then
be listed, or until there has been compliance with all applicable state or
federal securities laws; provided, however, that the Company shall use all
reasonable efforts to cause any such listing and compliance.
8.6 Taxes. The Company shall not be required to issue shares of Common
Stock upon the exercise of an Option unless the Grantee shall first pay to the
Company such amount, if any, as may be requested by the Company to satisfy any
liability to withhold federal, state, local or foreign income or other taxes
relating to such exercise.
8.7 Rights as Stockholder. A Grantee shall not by reason of any Option have
any right as a stockholder of the Company with respect to the shares of Common
Stock which may be deliverable upon exercise of such Option until such shares
have been delivered to him.
8.8 Severability. If all or any part of the Plan is declared by any court
or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of the Plan not declared to
be unlawful or invalid. Any Article or part of an Article so declared to be
unlawful or invalid shall,
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if possible, be construed in a manner which gives effect to the terms of such
Article or part of an Article to the fullest extent possible while remaining
lawful and valid.
8.9 Applicable Law. The Plan shall be governed by the substantive laws
(excluding the conflict of laws rules) of the State of Delaware.
ARTICLE IX
AMENDMENT
The Plan may be amended from time to time by the Board as it shall deem
advisable, including amendments necessary to qualify for any exemption or to
comply with applicable law or regulations; provided, however, that no amendment
to the Plan may be made without the approval of the stockholders of the Company
which changes (i) the criteria for Eligible Directors or (ii) the vesting
conditions, term of exercisability, grant timing, grant amount or exercise price
of Options. No amendment of the Plan shall adversely affect the rights of any
Grantee under an Option without the consent of such Grantee.
ARTICLE X
TERMINATION
The Plan shall terminate on the 10th anniversary of the Effective Date of
the Plan, unless sooner terminated by the Board. Any termination of the Plan
shall not affect any Option then outstanding.
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EXHIBIT 5
May 14, 1996
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Ladies and Gentlemen:
We have acted as counsel to Thermadyne Holdings Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-8 to be filed with the
Commission on or about May 20, 1996 (the "Registration Statement"), under the
Securities Act of 1933, as amended, with respect to the offer and sale by the
Company of up to 350,000 shares (the "Registered Shares") of the common stock,
par value $.01 per share, of the Company issuable upon exercise of options
granted pursuant to the Company's 1996 Employee Stock Option Plan and its
Non-Employee Directors Stock Option Plan (collectively, the "Plans").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Plans, the forms of option agreements under the Plans, and such corporate
records, agreements, documents, and other instruments and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such inquiries of such officers and representatives,
as we have deemed relevant and necessary as a basis for the opinion hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates of officers and representatives of the Company.
<PAGE> 2
Thermadyne Holdings Corporation
May 20, 1996
Page 2
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that when (a) the purchase price of the
Registered Shares issuable pursuant to the exercise of an option granted under
either of the Plans has been appropriately determined in accordance with the
terms of the Plans and the provisions of the Delaware General Corporation Law
(the "DGCL") (including the provisions requiring the payment of consideration
having a value not less than the par value of such shares); (b) each such
option has been duly authorized in accordance with the terms of the applicable
Plan, applicable provisions of the DGCL and the applicable option agreement has
been duly executed and delivered by the Company and the optionee; and (c) such
Registered Shares are issued and delivered against receipt of payment therefor
in accordance with the terms of the applicable Plan and the applicable option
agreement, such Registered Shares will be validly issued, fully paid and
nonassessable.
The opinion expressed herein is limited to the corporate laws of the
State of Delaware and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinion expressed herein is rendered solely for your benefit in
connection with the transactions described herein. This opinion may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written consent.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8), pertaining to the 1996 Employee Stock Option Plan and Non-Employee
Directors Stock Option Plan, of our reports dated January 30, 1996, with respect
to the consolidated financial statements of Thermadyne Holdings Corporation for
the year ended December 31, 1995, and the related financial statement schedule
incorporated by reference or included in Thermadyne Holdings Corporation's
Annual Report (Form 10-K), filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
May 20, 1996
