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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
Name of Issuer: Thermadyne Holdings Corporation
Title of Class of Securities: Common Stock, $.01 par value
CUSIP Number: 883435109
(Name, Address and Telephone Number of Person
Authorized To Receive Notices and Communications)
Felix Kozodoy, Magten Asset Management Corp.,
35 E. 21st St., New York, New York 10010
(Date of Event which Requires Filing of this Statement)
January 20, 1998
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 schedule because of
Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter the disclosures provided
in a prior cover page.
The information required in the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No.: 883435109
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Magten Asset Management Corp.
2. Check the Appropriate Box if a Member of a Group
a.
b. X
3. SEC Use Only
4. Source of Funds
O
5. Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e)
6. Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person
With:
7. Sole Voting Power:
-0-
8. Shared Voting Power:
2,998,773
9. Sole Dispositive Power:
-0-
10. Shared Dispositive Power:
3,517,773
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,517,773
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
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13. Percent of Class Represented by Amount in Row (11)
31.68%
14. Type of Reporting Person
CO
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CUSIP No.: 883435109
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Talton R. Embry
2. Check the Appropriate Box if a Member of a Group
a.
b. X
3. SEC Use Only
4. Source of Funds
O
5. Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e)
6. Citizenship or Place of Organization
United States
Number of Shares Beneficially Owned by Each Reporting Person
With:
7. Sole Voting Power:
60,771
8. Shared Voting Power:
2,998,773
9. Sole Dispositive Power:
60,771
10. Shared Dispositive Power:
3,517,773
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,578,544
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
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13. Percent of Class Represented by Amount in Row (11)
32.23%
14. Type of Reporting Person
IN
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The Schedule 13D was initially filed on July 25, 1996
(collectively, with all amendments thereto, the
"Schedule 13D") by (i) Magten Asset Management Corp., a
Delaware corporation ("Magten"), with respect to the shares
of Common Stock beneficially owned by investment advisory
clients of Magten, and (ii) Talton R. Embry ("Embry";
together with Magten, the "Filing Persons"). The
Schedule 13D is hereby amended by this Amendment No. 2 as
follows:
Item 5. Interest in Securities of the Issuer.
Item 5 as reported on Schedule 13D is hereby amended and
restated in its entirety as follows:
(a) Magten has beneficial ownership of an aggregate
3,517,773 shares of Common Stock of the Company,
constituting approximately 31.68% of the 11,103,966
shares of Common Stock reported by the Company as
outstanding as of October 29, 1997. All of these shares
of Common Stock are beneficially owned by investment
advisory clients of Magten (collectively, the
"Investment Advisory Shares"). Magten has shared voting
power (with its investment advisory clients and Embry)
with respect to 2,998,773 of the shares of Common Stock
owned by these clients and shared dispositive power
(with its investment advisory clients and Embry) with
respect to all 3,517,773 shares of Common Stock owned by
these clients.
Magten may be deemed to be the beneficial owner of the
Investment Advisory Shares. Pursuant to Rule 13d-4
promulgated under the Securities Exchange Act of 1934,
Magten hereby declares that the filing of this
Schedule 13D shall not be construed as an admission that
it is the beneficial owner of the Investment Advisory
Shares.
(b) Embry, as sole stockholder and a Managing Director of
Magten, may be deemed to beneficially own all the shares
of Common Stock beneficially owned by Magten, as
described in Item 5(a) above.
In addition, Embry directly owns 800 shares of Common
Stock. Embry has sole voting and dispositive power with
respect to these 800 shares of Common Stock.
Embry, as trustee of four pension trusts for the benefit
of current and former employees of Magten including
himself (the "Pension Trusts"), also has sole voting and
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dispositive power with respect to 56,640 shares of
Common Stock owned by such trusts (collectively, the
"Pension Trust Shares").
Embry, has sole voting and investment power with respect
to 2,216 shares of Common Stock held by his minor
children and with respect to 850 shares of Common Stock
held by his wife (collectively, the "Family Shares").
Embry, as trustee for a trust for the benefit of a
family members (the "Family Trust"), also has sole
voting and dispositive power with respect to 265 shares
owned by such trust (the "Family Trust Shares").
The shares described in Item 5(a) as beneficially owned
by Magten with respect to which Embry may be deemed a
beneficial owner, together with the additional shares
described in this Item 5(b) with respect to which Embry
may also be deemed a beneficial owner, aggregate
3,578,544 shares of Common Stock and constitute
approximately 32.23% of the outstanding shares of Common
Stock of the Company.
Pursuant to Rule 13d-4, Embry hereby declares that the
filing of this Schedule 13D shall not be construed as an
admission that he is the beneficial owner of the
Investment Advisory Shares, the Pension Trust Shares (to
the extent such shares exceed his and his wife's pro
rata interest as beneficiaries of such trusts), the
Family Shares or the Family Trust Shares.
(c) Information with respect to all transactions in Common
Stock effected by the Filing Persons since the previous
filing of Schedule 13D is set forth in Schedule A to
this Schedule 13D and is incorporated by reference
herein.
(d) The beneficial owners of the Investment Advisory Shares
have the right to receive and the power to direct the
receipt of dividends from, or the proceeds from the sale
of such shares. The following investment advisory
clients of Magten have such an interest with respect to
more than five percent of the shares of Common Stock:
General Motors Employees Domestic Group Pension Trust
and Bankers Trust as Trustee for the Hughes Master
Retirement Trust. The beneficiaries of the Pension
Trusts, the Family Trusts, Embry's wife and Embry's
minor children have the right to receive dividends from
or proceeds from the sale of the Pension Trust Shares,
the Family Trust Shares, and the Family Shares,
respectively.
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(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Item 6 as reported on Schedule 13D is hereby amended and
supplemented by the addition of the following paragraph:
As of January 20, 1998 Magten Asset Management Corp.,
for itself and on behalf of certain of its investment
advisory clients, and one of the pension trusts to which
Magten provides investment advice (collectively, the
"Parties"), entered into a voting agreement with Mercury
Acquisition Corporation ("Mercury") and the Company (the
"Voting Agreement") pursuant to which the Parties
agreed, among other things, to vote 3,563,573 of the
Shares that they or their affiliates are deemed to
beneficially own in favor of a merger of Mercury into
the Company pursuant to the terms of an Agreement and
Plan of Merger dated as of January 20, 1998 between
Mercury and the Company (the "Merger Agreement") and,
so long as the Voting Agreement is in effect, not to
vote their Shares in favor of the approval of any other
merger, consolidation, sale of assets, reorganization,
recapitalization or other similar extraordinary
corporate transaction involving the Company. The Voting
Agreement expires on the earlier of (a) the effective
date of the merger between Mercury and the Company; (b)
the date that is 90 days after (i) the termination of
the Merger Agreement pursuant to certain provisions
thereof relating to rights to terminate the Merger
Agreement based on withdrawal of approval by the Board
of Directors of the Company of the merger, failure of
the Company's stockholders to approve the merger or for
breach of representations, warranties or covenants and
(ii) payment of all amounts payable to Mercury pursuant
to the Merger Agreement; (c) the date of termination of
the Merger Agreement for any other reason or (d)
June 30, 1998.
Item 7. Material to be Filed as Exhibits
Exhibit A: Joint Filing agreement.
Exhibits B: As described in Item 6.
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Signatures
The undersigned, after reasonable inquiry and to
the best of their knowledge and belief, certify that the
information set forth in this statement is true, complete
and correct.
MAGTEN ASSET MANAGEMENT CORP.
By: /s/ Talton R. Embry
_____________________________
Talton R. Embry, Chairman
/s/ Talton R. Embry
____________________________
Talton R. Embry
February 12, 1998
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Exhibit A
AGREEMENT
The undersigned agree that this Amendment to
Schedule 13D dated February 12, 1998 relating to the Common
Stock of Thermadyne Holdings Corporation shall be filed on
behalf of the undersigned.
MAGTEN ASSET MANAGEMENT CORP.
By: /s/ Talton R. Embry
_____________________________
Talton R. Embry, Chairman
By: /s/ Talton R. Embry
____________________________
Talton R. Embry
February 12, 1998
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01651001.AH7
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Exhibit B
VOTING AGREEMENT
In consideration of Mercury Acquisition
Corporation, a Delaware corporation ("MergerSub") and
Thermadyne Holdings Corporation, a Delaware corporation (the
"Company"), entering into on the date hereof an Agreement
and Plan of Merger dated as of the date hereof (the "Merger
Agreement") which provides, among other things, that
MergerSub, upon the terms and subject to the conditions
thereof, will be merged with and into the Company (the
"Merger") and each outstanding share of common stock, $0.01
par value, of the Company (the "Company Common Stock") will
be converted into the right to receive the Merger
Consideration (as defined in the Merger Agreement) in
accordance with the terms of such Agreement, each of the
undersigned holders (each a "Stockholder") of shares of
Company Common Stock agrees with MergerSub as follows:
1. During the period (the "Agreement Period")
beginning on the date hereof and ending on the earlier of
(i) the Effective Time (as defined in the Merger Agreement),
(ii) the date that is 90 days after the termination of the
Merger Agreement in accordance with Section 9.01(c) (in the
case of a termination by MergerSub), (e), (f) or (g) thereof
and payment in full of all amounts (if any) payable to
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MergerSub pursuant to Section 5.04 of the Merger Agreement,
(iii) the date of termination of the Merger Agreement for
any other reason and (iv) June 30, 1998, the Stockholder
hereby agrees to vote the shares of Company Common Stock set
forth opposite its name in Schedule A hereto (the "Schedule
A Securities") to approve and adopt the Merger Agreement and
the Merger (provided that the Stockholder shall not be
required to vote in favor of the Merger Agreement or the
Merger if the Merger Agreement has, without the consent of
the Stockholder, been amended in any manner that is material
and adverse to such Stockholder) and any actions directly
and reasonably related thereto at any meeting or meetings of
the stockholders of the Company, and at any adjournment
thereof or pursuant to action by written consent, at or by
which such Merger Agreement, or such other actions, are
submitted for the consideration and vote of the stockholders
of the Company so long as such meeting is held (including
any adjournment thereof) or written consent adopted prior to
the termination of the Agreement Period.
2. During the Agreement Period, each Stockholder
hereby agrees that it will not vote any of the Stockholder's
Schedule A Securities in favor of the approval of any other
merger, consolidation, sale of assets, reorganization,
recapitalization, liquidation or winding up of the Company
or any other extraordinary transaction involving the Company
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or any matters related to or in connection therewith, or any
corporate action relating to or the consummation of which
would either frustrate the purposes of, or prevent or delay
the consummation of, the transactions contemplated by the
Merger Agreement.
3. From the date hereof until the termination
hereof, each Stockholder will not, directly or indirectly,
(i) take any action to solicit, initiate or encourage any
Acquisition Proposal or (ii) engage in negotiations or
discussions with, or disclose any nonpublic information
relating to the Company or any Subsidiary or afford access
to the properties, books or records of the Company or any
Subsidiary to, or otherwise assist, facilitate or encourage,
any Third Party that may be considering making, or has made,
an Acquisition Proposal. Each Stockholder will promptly
notify MergerSub after receipt of any Acquisition Proposal
or any indication from any Third Party that it is
considering making an Acquisition Proposal or any request
for nonpublic information relating to the Company or any
Subsidiary or for access to the properties, books or records
of the Company or any Subsidiary by any Third Party that may
be considering making, or has made, an Acquisition Proposal
and will keep MergerSub fully informed of the status and
details of any such Acquisition Proposal, indication or
request.
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4. Each Stockholder agrees not to exercise any
rights (including, without limitation, under Section 262 of
the Delaware Law) to demand appraisal of any shares of
Company Common Stock owned by the Stockholder.
5. Each Stockholder hereby represents and
warrants to MergerSub that as of the date hereof:
(a) such Stockholder (i) owns beneficially
all of the shares of Company Common Stock set forth opposite
the Stockholder's name in Schedule A hereto, (ii) has the
full and unrestricted legal power, authority and right to
enter into, execute and deliver this Voting Agreement
without the consent or approval of any other person and
(iii) has not entered into any voting agreement with or
granted any person any proxy (revocable or irrevocable) with
respect to such shares (other than this Voting Agreement).
(b) This Voting Agreement is the valid and
binding agreement of such Stockholder.
(c) No investment banker, broker or finder is
entitled to a commission or fee from such Stockholder or the
Company in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of the
Stockholder.
6. If any provision of this Voting Agreement
shall be invalid or unenforceable under applicable law, such
provision shall be ineffective to the extent of such
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invalidity or unenforceability only, without in any way
affecting the remaining provisions of this Voting Agreement.
7. This Voting Agreement may be executed in two
or more counterparts each of which shall be an original with
the same effect as if the signatures hereto and thereto were
upon the same instrument.
8. The parties hereto agree that if for any
reason any party hereto shall have failed to perform its
obligations under this Voting Agreement, then the party
seeking to enforce this Agreement against such non-
performing party shall be entitled to specific performance
and injunctive and other equitable relief, and the parties
hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the
obtaining of any such-injunctive or other equitable relief.
This provision is without prejudice to any other rights or
remedies, whether at law or in equity, that any party hereto
may have against any other party hereto for any failure to
perform its obligations under this Voting Agreement.
9. This Voting Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware.
10. The Stockholder will, upon request, execute
and deliver any additional documents deemed by MergerSub to
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be necessary or desirable to complete and effectuate the
covenants contained herein.
11. This Agreement shall terminate upon the
termination of the Agreement Period.
12. Each Stockholder agrees that if it sells,
transfers, assigns, encumbers or otherwise disposes (each a
"Transfer") of any Schedule A Securities (whether to an
affiliate or otherwise), it shall require the transferee of
such Schedule A Securities to execute and deliver to
MergerSub and the Company a voting agreement identical in
form to this Voting Agreement except for the identity of
such Stockholder prior to or concurrent with the
consummation of such Transfer. MergerSub and the Company
understand and acknowledge that, subject to the preceding
sentence, such Stockholder is free to Transfer any Schedule
A Securities at such times and in such manner as it deems
appropriate.
13. MergerSub and the Company understand and agree
that this Agreement pertains only to Stockholder and not to
any of its affiliates, if any, or adviser.
14. MergerSub and the Company severally and not
jointly represent and warrant to each Stockholder that there
is no agreement, understanding or commitment, written or
oral, to pay any consideration directly or indirectly in
connection with the Merger or otherwise to or for the
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benefit of any holder of Company Common Stock or options
thereon other than as set forth in the Merger Agreement
(except, in the case of directors, employees, agents,
customers, suppliers or contractors of the Company who are
also holders, such consideration as is payable by the
Company in the ordinary course of business and except for
amounts payable to officers, directors or employees in
connection with or pursuant to any options, or option, stock
purchase, stock ownership or other employee benefit plans).
All other voting agreements signed with existing
shareholders prior to or concurrently herewith are
substantially identical to this Agreement.
Neither MergerSub nor the Company will enter into
any agreement with any other stockholder having a purpose or
effect substantially similar to that of this Agreement on
financial terms (with respect to such other stockholder)
more favorable than the terms of this Agreement.
15. MergerSub agrees that it will pay upon request
the reasonable fees and expenses (including fees and
expenses of counsel for the Stockholders) of all
Stockholders incurred in connection with the Voting
Agreement or the Merger in an amount not to exceed $5,000,
or in the event the Stockholders become involved in
litigation, $15,000 in the aggregate.
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IN WITNESS WHEREOF, the parties hereto have
executed this Voting Agreement as of this 20th day of
January, 1998.
MERCURY ACQUISITION CORPORATION
By /s/ Peter T. Grauer
Peter T. Grauer
President
THERMADYNE HOLDINGS CORPORATION
By /s/ Randall E. Curran
Randall E. Curran
Chairman of the Board
GENERAL MOTORS EMPLOYEES DOMESTIC
GROUP PENSION TRUST
By: Mellon Bank, N.A., solely in
its capacity as Trustee for General
Motors Employees Domestic Group
Pension Trust as directed by Magten
Asset Management Corp., and not in
its individual capacity.
By /s/ Bernadette Rist
Bernadette Rist
Authorized Signatory
MAGTEN ASSET MANAGEMENT CORP.
By /s/ Talton R. Embry
Name:
Title:
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CITY OF LOS ANGELES FIRE AND POLICE
PENSION SYSTEMS
HUGHES RETIREMENT PLANS TRUST
NAVY EXCHANGE SERVICE COMMAND
RETIREMENT TRUST
WESTERN UNION TELEGRAPH COMPANY
PENSION PLAN
By: Magten Asset Management Corp.,
as Attorney-in-Fact
By /s/ Talton R. Embry
Name:
Title:
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SCHEDULE A
Shares of Company
Stockholder Common Stock
Magten Asset Management Corp. 152,847
General Motors Employees
Domestic Group Pension Trust 1,701,125
City of Los Angeles Fire and
Police Pension Systems 519,000
Hughes Retirement Plans Trust 640,000
Navy Exchange Service Command
Retirement Trust 300,000
Western Union Telegraph
Company Pension Plan 250,601
3,563,573
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