As filed with the Securities and Exchange Commission on December 18, 1998.
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)
Delaware 74-2482571
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
101 South Hanley Road, Suite 300 Randall E. Curran
St. Louis, Missouri 63105 101 South Hanley Road, Suite 300
(Address, Including Zip Code, St. Louis, Missouri 63105
of Registrant's Principal (314) 721-5573
Executive Offices) Name, Address, Including Zip Code,
and Telephone Number, Including
Area Code, of Agent for Service)
Thermadyne Holdings Corporation
Management Incentive Plan
Thermadyne Holdings Corporation
1998 Non-Employee Directors Stock Option Plan
(Full Title of the Plans)
A copy of all communications, including all
communications sent to agent for service,
should be sent to:
R. Scott Cohen
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
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 520,000 Shares $12,145,610 $3,377
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Of the 520,000 shares of common stock, $.01 par value per share ("Common
Stock"), of Thermadyne Holdings Corporation (the "Company") being
registered hereby, 500,000 relate to the Management Incentive Plan (the
"Management Incentive Plan") and 20,000 relate to the 1998 Non-Employee
Directors Stock Option Plan (the "Directors Plan" and, together with the
Management Incentive Plan, the "Plans"). Pursuant to Rule 416 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 sections (c) and (h)(1) of Rule 457 promulgated under
the Securities Act, calculated on the basis of the weighted average of (i)
the average of the high and low sales prices for Common Stock as reported
on the Nasdaq National Market on October 26, 1998 (the last active trading
day prior to Nasdaq's delisting of the Common Stock), with respect to
331,108 shares of Common Stock as to which the exercise price has not been
determined under the Plans, (ii) the weighted average exercise price of
options to purchase 182,892 shares of Common Stock as to which the exercise
price has been determined under the Management Incentive Plan and (iii) the
weighted average exercise price of options to purchase 6,000 shares of
Common Stock as to which the exercise price has been determined under the
Directors Plan.
================================================================================
<PAGE>
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 (File No. 0-23378) for the
year ended December 31, 1997 filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which contains audited
financial statements for the year ended December 31, 1997.
(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 referred to in (a) above.
(c) The Description of the Company's Capital Stock contained in the
Prospectus forming a part of the Company's Registration Statement (Amendment No.
4) dated April 23, 1998 (File No. 333-46631).
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 part hereof from the date of
filing of such documents. Any statement 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 part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the shares of Common Stock
initially offered upon exercise of options pursuant to the Plans have been
passed upon for the Company by Weil, Gotshal & Manges LLP, Dallas, Texas.
Item 6. Indemnification of Officers and Directors.
Delaware law authorizes corporations to limit or to eliminate the
personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care. The Company's
Certificate of Incorporation limits the liability of the Company's directors to
<PAGE>
the Company or its stockholders to the fullest extent permitted by the Delaware
statute as in effect from time to time. Specifically, directors of the Company
will not be personally liable for monetary damages for breach of a director's
fiduciary duty as a director, except for liability for (i) any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in the Delaware law, or (iv) any
transaction from which the director derived an improper personal benefit.
The Certificate of Incorporation provides that the Company shall
indemnify its officers and directors to the fullest extent permitted by the
General Corporation Law of the State of Delaware. Pursuant to the provisions of
Section 145 of the General Corporation Law of the State of Delaware, the Company
has the power to indemnify any person who is or was a party or is threatened to
be made a party to any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Company) by reason of the fact that the
person is or was a director or officer of the Company or is or was serving at
the request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, by itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that the person's conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of
the Company as well, but only to the extent of defense and settlement expenses
and not to any satisfaction of a judgment or settlement of the claim itself, and
with the further limitation that in such actions no indemnification shall be
made in the event such person shall have been adjudged to be liable to the
Company unless and only to the extent that the court determines that, in view of
all the circumstances of the case, such person is fairly and reasonable entitled
to indemnity for such expenses the court shall deem proper.
The statute further specifically provides that the indemnification
authorized thereby shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
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
II-2
<PAGE>
against such liabilities (other than payment by the Company of expenses incurred
or paid by a director, officer or controlling person of the Company 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, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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 Thermadyne Holdings Corporation Management Incentive Plan.*
4.2 Thermadyne Holdings Corporation 1998 Non-Employee Directors
Stock Option Plan.*
5.1 Opinion of Weil, Gotshal & Manges LLP.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see page II-5 of this Registration
Statement).
- ------------------------
* Filed herewith.
Item 9. Undertakings.
(a) The Company 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.
(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>
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, 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.
II-4
<PAGE>
SIGNATURES
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 St. Louis, State of Missouri, on this 18th day of
December, 1998.
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 Randall E. Curran and James H. Tate, and each
individually, 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, President and December 8, 1998
- ----------------------------- Chief Executive Officer (principal
Randall E. Curran executive officer)
/s/ James H. Tate Director, Senior Vice President and December 8, 1998
- ----------------------------- Chief Financial Officer (principal
James H. Tate financial and accounting officer)
/s/ Peter T. Grauer Director December 8, 1998
- -----------------------------
Peter T. Grauer
/s/ William F. Dawson, Jr. Director December 8, 1998
- -----------------------------
William F. Dawson, Jr.
/s/ John F. Fort III Director December 8, 1998
- -----------------------------
John F. Fort III
/s/ Harold A. Poling Director December 8, 1998
- -----------------------------
Harold A. Poling
/s/ Lawrence M.v.D. Schloss Director December 8, 1998
- -----------------------------
Lawrence M.v.D. Schloss
</TABLE>
II-5
<PAGE>
Exhibit Index
Exhibit No. Description
----------- -----------
4.1 Thermadyne Holdings Corporation Management Incentive Plan.
4.2 Thermadyne Holdings Corporation 1998 Non-Employee Directors
Stock Option Plan.
5.1 Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see page II-5 of this Registration
Statement).
Exhibit 4.1
THERMADYNE HOLDINGS CORPORATION
Management Incentive Plan
SECTION 1. Purpose. The purposes of the Thermadyne Holdings Corporation
Management Incentive Plan are to promote the interests of Thermadyne Holdings
Corporation (the "Company") and its stockholders by (i) attracting and retaining
exceptional executive personnel and other key employees of the Company and its
Subsidiaries, as defined below; (ii) motivating such employees by means of
performance-related incentives to achieve longer-range performance goals; and
(iii) enabling such employees to participate in the long-term growth and
financial success of the Company.
SECTION 2. Definitions. As used in the Plan, the following terms shall have
the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For purposes of this definition, the terms "control" (including with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), when used with respect to any Person, means the possession, directly or
indirectly of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Award" means any Option.
"Award Agreement" means any written agreement, contract, or other instrument
or document evidencing any Award, which may, but need not, be executed or
acknowledged by a Participant.
"Board" means the Board of Directors of the Company.
"Cause" means (i) dishonesty by a Participant that results in substantial
personal enrichment at the expense of the Company or (ii) demonstratively
willful repeated violations of a Participant's obligations to the Company
(including under any employment agreement between the Participant and the
Company) which are intended to result in material injury to the Company.
"Change of Control" means:
(a) any "person" (as such term is used in Section 3(a)(9) and 13(d)(3)
of the Exchange Act) other than (A) the DLJ Entities and/or their respective
Permitted Transferees (as defined in the Investors' Agreement) or (B) any
"group" (within the meaning of such Section 13(d)(3)) of which the DLJ
Entities constitute a majority (on the basis of ownership interest),
acquires, directly or indirectly, by virtue of the consummation of any
purchase, merger or other combination, securities of the Company
representing more than 51% of the combined voting power of the Company's
then outstanding voting securities with respect to matters submitted to a
vote of the stockholders generally; or
(b) a sale or transfer by the Company or any of its Subsidiaries of
substantially all of the consolidated assets of the Company and its
Subsidiaries to an entity which is not an Affiliate of the Company prior to
such sale or transfer.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means a committee of the Board designated by the Board to
administer the Plan and composed of not less than the minimum number of persons
from time to time required by Rule 16b-3 and Section 162(m) each of whom, to the
extent necessary to comply with Rule 16b-3 and Section 162(m) only, is a
"Non-Employee Director" and an "Outside Director" within the meaning of Rule
16b-3 and Section 162(m), respectively. Until otherwise determined by the Board,
the full Board shall be the Committee under the Plan.
<PAGE>
"Disability" shall mean a Participant's inability to perform the duties of
his or her employment due to mental or physical incapacity for a period of six
consecutive months.
"Employee" means an employee of the Company or any Subsidiary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means with respect to the Shares, as of the consummation
of the merger of the Company and Mercury Acquisition Corporation, $34.50 per
share, and as of any other given date or dates, the average reported closing
price of a share of such class of common stock on such exchange or market as is
the principal trading market for such class of common stock for the three
trading days immediately preceding such date or dates. If such class of common
stock is not traded on an exchange or principal trading market on such date, the
fair market value of a Share shall be determined by the Committee in good faith
taking into account as appropriate recent sales of the Shares, recent valuations
of the Shares and such other factors as the Committee shall in its discretion
deem relevant or appropriate.
"Investors' Agreement" means the Investors' Agreement dated as of May 22,
1998 among (i) the Company, (ii) DLJ Merchant Banking Partners II, L.P., DLJ
Offshore Partners II, C.V., DLJ Merchant Banking Partners II-A, L.P., DLJ
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P., DLJMB Funding II, Inc., UK
Investment Plan 1997 Partners, DLJ EAB Partners, DLJ First ESC, L.P. and DLJ ESC
II, L.P. (collectively, the "DLJ Entities") and (iii) certain other Persons
listed on the signature pages thereof.
"Liquidation Event" means the sale by the DLJ Entities of 75% or more of
their investment in the Company or a sale of substantially all of the assets of
the Company.
"Option" means a right to purchase Shares from the Company granted under
Section 6 of the Plan.
"Participant" means any Employee selected by the Committee to receive an
Award under the Plan (and to the extent applicable, any heirs or legal
representatives thereof).
"Permitted Transferee" shall have the meaning assigned to it in the
Investors' Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
"Plan" means this Thermadyne Holdings Corporation Management Incentive Plan.
"Rule 16b-3" means Rule 16b-3 as promulgated and interpreted by the SEC
under the Exchange Act, or any successor rule or regulation thereto as in effect
from time to time.
"SEC" means the Securities and Exchange Commission or any successor thereto.
"Section 162(m)" means Section 162(m) of the Code, or any successor section
thereto as in effect from time to time.
"Shares" means shares of common stock, $0.01 par value, of the Company or
such other securities as may be designated by the Committee from time to time.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other 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
such Person.
"Substitute Awards" means Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired by
the Company or with which the Company combines.
2
<PAGE>
SECTION 3. Administration.
(a) Authority of Committee. The Plan shall be administered by the Committee.
Subject to the terms of the Plan, applicable law and contractual restrictions
affecting the Company, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the Committee shall have
full power and authority to: (i) designate Participants; (ii) determine the type
or types of Awards to be granted to a Participant; (iii) determine the number of
Shares to be covered by, or with respect to which payments, rights, or other
matters are to be calculated in connection with, Awards; (iv) determine the
terms and conditions of any Award and Award Agreement; (v) determine whether, to
what extent, and under what circumstances Awards may be settled or exercised in
cash, Shares, other securities, other Awards or other property, or canceled,
forfeited, or suspended and the method or methods by which Awards may be
settled, exercised, canceled, forfeited, or suspended; (vi) determine whether,
to what extent, and under what circumstances cash, Shares, other securities,
other Awards, other property, and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the holder thereof
or of the Committee; (vii) interpret and administer the Plan and any instrument
or agreement relating to, or Award made under, the Plan; (viii) establish,
amend, suspend, or waive such rules and regulations and appoint such agents as
it shall deem appropriate for the proper administration of the Plan; and (ix)
make any other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan.
(b) Committee Discretion Binding. Unless otherwise expressly provided in the
Plan, all designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the sole
discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all Persons, including the Company, any Subsidiary,
any Participant, any holder or beneficiary of any Award, any shareholder and any
Employee.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section 4(b) and
4(c), the number of Shares with respect to which Awards may be granted under the
Plan shall be 500,000. If, after the effective date of the Plan, any Shares
covered by an Award granted under the Plan or to which such an Award relates are
forfeited, or if such an Award is settled for cash or otherwise terminates or is
canceled without the delivery of Shares, then the Shares covered by such Award,
or to which such Award relates, or the number of Shares otherwise counted
against the aggregate number of Shares with respect to which Awards may be
granted, to the extent of any such settlement, forfeiture, termination or
cancellation, shall, in the calendar year in which such settlement, forfeiture,
termination or cancellation occurs, again become Shares with respect to which
Awards may be granted unless any dividends have been paid thereon prior to such
settlement, forfeiture, termination or cancellation. In addition, Shares
tendered in satisfaction or partial satisfaction of the exercise price of any
Award or any tax withholding obligations will again become Shares with respect
to which Awards may be granted. Notwithstanding the foregoing and subject to
adjustment as provided in Section 4(b), no Employee of the Company may receive
Options in any calendar year that relate to more than 250,000 Shares.
(b) Adjustments. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, reclassification, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of Shares or other securities of
the Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number of Shares of the Company (or number and kind of other securities
or property) with respect to which Awards may thereafter be granted, (ii) the
number of Shares or other securities of the Company (or number and kind of other
securities or property) subject to outstanding Awards, and (iii) the grant or
exercise price with respect to any Award, or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Award.
Notwithstanding the foregoing, the issuance of warrants by the Company in
connection with the merger of the Company and Mercury Acquisition Corporation
shall not give rise to any such adjustment.
3
<PAGE>
(c) Substitute Awards. Any Shares underlying Substitute Awards shall not be
counted against the Shares available for Awards under the Plan.
(d) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
SECTION 5. Eligibility. Any Employee, including any officer or
employee-director of the Company or any Subsidiary, shall be eligible to be
designated a Participant.
SECTION 6. Stock Options.
(a) Grant. Subject to the provisions of the Plan and contractual
restrictions affecting the Company, the Committee shall have sole and complete
authority to determine the Employees to whom Options shall be granted, the
number of Shares to be covered by each Option, the exercise price therefor and
the conditions and limitations applicable to the exercise of the Option.
(b) Exercise Price. The Committee in its sole discretion shall establish the
exercise price at the time each Option is granted; provided, that in no event
shall the exercise price per Share be less than the Fair Market Value of a Share
on the date of grant.
(c) Exercise. Each Option shall be exercisable at such times and subject to
such terms and conditions as the Committee may, in its sole discretion, specify
in the applicable Award Agreement or thereafter. The Committee may impose such
conditions with respect to the exercise of Options, including without
limitation, any relating to the application of Federal or state securities laws,
as it may deem necessary or advisable.
(d) Payment. No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the exercise price, or adequate provision
therefor, is received by the Company. Such payment may be made: (i) in cash;
(ii) in Shares owned by the Participant for at least six months (the value of
such Shares shall be their Fair Market Value on the date of exercise); (iii) by
a combination of cash and Shares; or (iv) in such other manner as permitted by
the Committee at the time of grant or thereafter.
SECTION 7. Vesting; Termination of Employment. Each Award Agreement shall
contain such terms as the Committee may in its sole discretion determine
concerning vesting, forfeiture, the Company's rights of repurchase of Shares
acquired upon exercise of an Option, and/or the effects of termination or
suspension of a Participant's employment upon the exercisability of any Option
granted thereunder.
SECTION 8. Change of Control. The Committee, in its sole discretion, may
provide in an Award Agreement for the accelerated vesting of an Award in the
event of a Change of Control.
SECTION 9. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to
comply with any tax or regulatory requirement, including for these purposes any
approval requirement which is a prerequisite for exemptive relief from Section
16(b) of the Exchange Act, for which or with which the Board deems it necessary
or desirable to qualify or comply. Notwithstanding anything to the contrary
herein, the Committee may amend the Plan in such manner as may be necessary so
as to have the Plan conform with local rules and regulations in any jurisdiction
outside the United States.
(b) Amendments to Awards. Subject to the terms of the Plan and applicable
law, the Committee may waive any conditions or rights under, amend any terms of,
or alter, suspend, discontinue, cancel or terminate, any Award theretofore
granted, prospectively or retroactively; provided that any such waiver,
amendment, alteration, suspension, discontinuance, cancellation or termination
that would adversely affect the rights Participant or any holder or beneficiary
of any Award theretofore granted shall not to that extent be effective without
the consent of the affected Participant, holder or beneficiary.
4
<PAGE>
(c) Cancellation. Any provision of this Plan or any Award Agreement to the
contrary notwithstanding, in the event of a Change of Control or an offer to
Participants generally relating to the acquisition of Shares, including through
purchase, merger or otherwise, the Committee may cause any Award granted
hereunder to be canceled in consideration of a cash payment or alternative Award
made to the holder of such canceled Award equal in value to the Fair Market
Value of such canceled Award.
SECTION 10. General Provisions.
(a) Dividend Equivalents. In the sole and complete discretion of the
Committee, an Award may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a
current or deferred basis.
(b) Nontransferability. Except to the extent otherwise provided in an Award
Agreement, no Award shall be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by a Participant, except by will or the laws
of descent and distribution.
(c) No Rights to Awards. No Employee, Participant or other Person shall have
any claim to be granted any Award, and there is no obligation for uniformity of
treatment of Employees, Participants, or holders or beneficiaries of Awards. The
terms and conditions of Awards need not be the same with respect to each
recipient.
(d) Share Certificates. Certificates issued in respect of Shares shall,
unless the Committee otherwise determines, be registered in the name of the
Participant or its Permitted Transferees and shall be deposited by such
Participant or Permitted Transferee, together with a stock power endorsed in
blank, with the Company. When the Participant ceases to be bound by any transfer
restrictions set forth herein or in the Investors' Agreement, the Company shall
deliver such certificates to the Participant upon request. Such stock
certificate shall carry such appropriate legends, and such written instructions
shall be given to the Company's transfer agent, as may be deemed necessary or
advisable by counsel to the Company in order to comply with the requirements of
the Securities Act of 1933, any state securities laws or any other applicable
laws and the Investors' Agreement. Subject to the provisions of the Investors'
Agreement, all certificates for Shares or other securities of the Company or any
Subsidiary delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop transfer orders and other restrictions as
the Committee may deem advisable under the Plan or the rules, regulations and
other requirements of the Securities and Exchange Commission or any stock
exchange upon which such Shares or other securities are then listed and any
applicable laws or rules or regulations, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
(e) Withholding. A Participant may be required to pay to the Company or any
Subsidiary, and the Company or any Subsidiary shall have the right and is hereby
authorized to withhold from any Award, from any payment due or transfer made
under any Award or under the Plan or from any compensation or other amount owing
to a Participant the amount (in cash, Shares, other securities, other Awards or
other property) of any applicable withholding taxes in respect of an Award, its
exercise, or any payment or transfer under an Award or under the Plan and to
take such other action as may be necessary in the opinion of the Company to
satisfy all obligations for the payment of such taxes. The Committee may provide
for additional cash payments to holders of Awards to defray or offset any tax
arising from any such grant, lapse, vesting, or exercise of any Award.
(f) Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement which shall be delivered to the Participant and shall specify the
terms and conditions of the Award and any rules applicable thereto.
(g) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Subsidiary from adopting or continuing in
effect other compensation arrangements, which may, but need not, provide for the
grant of options, restricted stock, Shares and other types of Awards provided
for hereunder (subject to shareholder approval if such approval is required),
and such arrangements may be either generally applicable or applicable only in
specific cases.
(h) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ or service of the
Company or any Subsidiary. Further, the Company or any Subsidiary may at any
time dismiss a Participant from employment or service, free from any liability
or any claim under the Plan, unless otherwise expressly provided in the Plan or
in any Award Agreement.
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(i) Rights as a Stockholder. Subject to the provisions of the applicable
Award, no Participant or holder or beneficiary of any Award shall have any
rights as a stockholder with respect to any Shares to be issued under the Plan
until he or she has become the holder of such Shares.
(j) Governing Law. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan and any Award Agreement shall be
determined in accordance with the laws of the State of Delaware.
(k) Severability. If any provision of the Plan or any Award is or becomes or
is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to
any Person or Award, or would disqualify the Plan or any Award under any law
deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award, such provision shall be stricken
as to such jurisdiction, Person or Award and the remainder of the Plan and any
such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or transfer any Shares or
other consideration under an Award if, acting in its sole discretion, it
determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant in connection therewith shall
be promptly refunded to the relevant Participant, holder or beneficiary. Without
limiting the generality of the foregoing, no Award granted hereunder shall be
construed as an offer to sell securities of the Company, and no such offer shall
be outstanding, unless and until the Committee in its sole discretion has
determined that any such offer, if made, would be in compliance with all
applicable requirements of the U.S. federal securities laws and any other laws
to which such offer, if made, would be subject.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall create or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Subsidiary and a Participant or any
other Person. To the extent that any Person acquires a right to receive payments
from the Company or any Subsidiary pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Subsidiary.
(n) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash or other securities or other property shall be paid or transferred in lieu
of any fractional Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated, or otherwise eliminated.
(o) Transfer Restrictions. Shares acquired hereunder may not be sold,
assigned, transferred, pledged or otherwise disposed of, except as provided in
the Plan, the applicable Award Agreement and the Investors' Agreement.
(p) Headings. Headings are given to the Sections and subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 11. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of May 22, 1998, subject
to approval by the shareholders of the Company. Awards may be granted hereunder
prior to such shareholder approval subject in all cases, however, to such
approval.
(b) Expiration Date. The Board and the Committee's authority to grant Awards
under the Plan shall terminate on the tenth anniversary of the Plan's effective
date. Unless otherwise expressly provided in the Plan or in an applicable Award
Agreement, any Award granted hereunder may, and the authority of the Board or
the Committee to amend, alter, adjust, suspend, discontinue, or terminate any
such Award or to waive any conditions or rights under any such Award shall,
continue after the authority for grant of new Awards hereunder has been
exhausted.
6
Exhibit 4.2
THERMADYNE HOLDINGS CORPORATION
1998 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
ARTICLE I
PURPOSE
The purpose of the Thermadyne Holdings Corporation 1998 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 August 4, 1998.
2.6 "Eligible Director" means a Director who is not an employee of (i) the
Company or any of its subsidiaries or (ii) any beneficial owner (as determined
in accordance with Rule 13d-3 under the Exchange Act) of ten percent or more of
the Common Stock or any affiliate (as defined in Rule 12b-2 under the Exchange
Act) of such beneficial owner, in each case 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, 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.
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.
<PAGE>
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Board. The Board shall have the power
to construe and interpret the Plan, to determine 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. 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 20,000, 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 Effective Date, each Eligible Director
shall automatically be granted an Option for 3,000 shares of Common Stock.
Thereafter, subject to Section 8.1, each new Eligible Director shall be granted
an Option for 3,000 shares upon election to the Board.
5.2 Subsequent Grants of Options. Subject to Section 8.1, on November 1,
1999 and each November 1 thereafter, each Eligible Director shall automatically
be granted an Option for 500 shares of Common Stock.
5.3 Terms of Options. Each Option shall have a term ("Term") of ten (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 granted on
the Effective Date shall be $34.50, subject to subsequent adjustment pursuant to
Article VII. The exercise price per share for each Option granted subsequent to
the Effective Date 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
2
<PAGE>
pursuant to Section 6.1 on the date the person ceased to be a Director) at any
time prior to 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.
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 Option 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.
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, if possible, be construed in a manner which gives
3
<PAGE>
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. 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 tenth 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.
4
Exhibit 5.1
WEIL, GOTSHAL & MANGES LLP
100 CRESCENT COURT - SUITE 1300
DALLAS, TEXAS 75201-6950
214-746-7700
(FAX) 214-746-7777
December 18, 1998
Thermadyne Holdings Corporation
101 South Hanley Road
St. Louis, Missouri 63105
Ladies and Gentlemen:
We have acted as counsel to Thermadyne Holdings Corporation
(the "Company") in connection with the preparation and filing by the Company of
a Registration Statement on Form S-8 to be filed with the Securities and
Exchange Commission on or about December 18, 1998 (the "Registration
Statement"), under the Securities Act of 1933, as amended, with respect to the
offer and sale by the Company of up to 520,000 shares (the "Registered Shares")
of the common stock, par value $.01 per share, of the Company issuable upon the
exercise of stock options (the "Stock Options") granted pursuant to the
Company's Management Incentive Plan and 1998 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 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 opinions 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, conformed 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 or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that when the Registered Shares are issued
and delivered against receipt of payment therefor in accordance with the terms
of the Plans, such Registered Shares will be validly issued, fully paid and
nonassessable.
The opinions expressed herein are 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.
<PAGE>
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our reports dated February 5, 1998, with respect to the consolidated
financial statements and schedule of Thermadyne Holdings Corporation included in
its Annual Report on Form 10-K for the year ended December 31, 1997.
Orange County, California /s/ ERNST & YOUNG LLP
December 16, 1998
