EXHIBIT 3
SUBSCRIPTION AGREEMENT
dated as of
December 22, 1999
by and among
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS ▇▇-▇, ▇.▇.,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇.,
▇▇▇ DIVERSIFIED PARTNERS, L.P.,
DLJ DIVERSIFIED PARTNERS-A, L.P.,
DLJMB FUNDING II, INC.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS-A, L.P.,
DLJ EAB PARTNERS, L.P.,
DLJ ESC II L.P.,
DLJ FIRST ESC, L.P.,
THERMADYNE HOLDINGS CORPORATION
and
THERMADYNE MFG. LLC
relating to the purchase and sale
of
Junior Subordinated Notes due 2009 of Thermadyne Mfg. LLC
and
Warrants to Purchase Shares of Common Stock
of Thermadyne Holdings Corporation
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale...............................................5
SECTION 2.02. Closing.........................................................5
SECTION 2.03. Purchase Price Allocation.......................................5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
SECTION 3.01. Corporate Existence and Power...................................6
SECTION 3.02. Corporate Authorization.........................................6
SECTION 3.03. Noncontravention................................................6
SECTION 3.04. Capitalization; Indebtedness....................................7
SECTION 3.05. Subsidiaries....................................................8
SECTION 3.06. Parent 34 Act Reports...........................................8
SECTION 3.07. Litigation......................................................8
SECTION 3.08. Environmental Matters...........................................8
SECTION 3.09. Licenses and Permits............................................9
SECTION 3.10. Financial Statements............................................9
SECTION 3.11. Investment Company Act.........................................10
SECTION 3.12. Registration Obligations.......................................10
SECTION 3.13. No Violation of Regulation G, T, U or X........................10
SECTION 3.14. No Ratings Decline.............................................10
SECTION 3.15. No Material Change.............................................10
SECTION 3.16. No Solicitation................................................11
SECTION 3.17. Labor Matters..................................................11
SECTION 3.18. Accounting Controls............................................11
SECTION 3.19. Intellectual Property..........................................11
SECTION 3.20. Indenture......................................................12
SECTION 3.21. No Registration................................................12
SECTION 3.22. Certificates...................................................12
PAGE
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
SECTION 4.01. Corporate/Partnership Existence and Power......................12
SECTION 4.02. Corporate/Partnership Authorization............................12
SECTION 4.03. Governmental Authorization.....................................12
SECTION 4.04. Noncontravention...............................................13
SECTION 4.05. Purchase for Investment........................................13
SECTION 4.06. Litigation.....................................................13
SECTION 4.07. Finders' Fees..................................................13
ARTICLE 5
COVENANTS OF THE PARTIES
SECTION 5.01. Best Efforts; Further Assurances...............................14
SECTION 5.02. Certain Filings................................................14
SECTION 5.03. Public Announcements...........................................14
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of each Party........................14
SECTION 6.02. Conditions to Obligation of the Buyers.........................15
SECTION 6.03. Conditions to Obligation of the Issuers........................16
ARTICLE 7
SURVIVAL; INDEMNIFICATION
SECTION 7.01. Survival.......................................................17
SECTION 7.02. Indemnification................................................18
SECTION 7.03. Procedures.....................................................18
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices........................................................19
SECTION 8.02. Amendments and Waivers.........................................20
SECTION 8.03. Expenses.......................................................20
SECTION 8.04. Successors and Assigns.........................................20
SECTION 8.05. Governing Law..................................................20
SECTION 8.06. Jurisdiction...................................................21
ii
SECTION 8.07. WAIVER OF JURY TRIAL...........................................21
SECTION 8.08. Counterparts; Third Party Beneficiaries........................21
SECTION 8.09. Appointment of Agent...........................................21
SECTION 8.10. Entire Agreement...............................................22
SECTION 8.11. Captions.......................................................22
SECTION 8.12. Enforcement of Voting Rights...................................22
EXHIBITS
Exhibit A -- Form of Notes, including attached Form of Indenture
Exhibit B -- Form of Registration Rights Agreement
Exhibit C -- Form of Warrants
SCHEDULE
Schedule 3.05 -- Subsidiaries
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of December 22, 1999 by and among DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners ▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇, ▇.▇., ▇▇▇ Diversified Partners, L.P., DLJ Diversified Partners-A,
L.P., DLJMB Funding II, Inc., DLJ Millennium Partners, L.P., DLJ Millennium
Partners-A, L.P., DLJ EAB Partners, L.P., DLJ ESC II L.P. and DLJ First ESC,
L.P., (each of the foregoing, a "DLJ Buyer", and collectively, the "DLJ Buyers"
and sometimes referred to as the "Buyers"), Thermadyne Holdings Corporation, a
Delaware corporation ("Parent"), and Thermadyne Mfg. LLC, a Delaware limited
liability company and a wholly-owned subsidiary of Parent (the "Company").
W I T N E S S E T H :
WHEREAS, the Buyers desire to purchase, and Parent and the Company desire
to issue and sell to the Buyers, the Securities (as defined below), upon the
terms and subject to the conditions hereinafter set forth.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person; provided that no securityholder of Parent shall be deemed an Affiliate
of any other securityholder of Parent or any Subsidiary solely by reason of any
investment in Parent. For the purpose of this definition, the term "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Common Stock, par value $0.01 per share, of
Parent.
"Credit Agreement" means the Credit Agreement dated as of May 22, 1998
among the Company, Comweld Group Pty. Ltd., GenSet S.p.A., Thermadyne Welding
Products Canada Limited, the various financial institutions party thereto from
time to time, DLJ Capital Funding, Inc., as syndication agent, Societe
Generale, as documentation agent and ABN AMRO Bank N.V., as administrative
agent, as amended from time to time, together with the related documents
thereto (including, without limitation, the term loans, revolving loans and
swingline loans thereunder, the letters of credit issued pursuant thereto and
any guarantees and security documents).
"Federal Tax" means any Tax imposed under Subtitle A of the Code.
"Final Determination" shall mean (i) any final determination of liability
in respect of a Tax that, under applicable law, is not subject to further
appeal, review or modification through proceedings or otherwise (including the
expiration of a statute of limitations or a period for the filing of claims for
refunds, amended returns or appeals from adverse determinations), including a
"determination" as defined in Section 1313(a) of the Code or execution of an
Internal Revenue Service Form 870AD or (ii) the payment of Tax by the Buyers,
Parent or a Subsidiary, whichever is responsible for payment of such Tax under
applicable law, with respect to any item disallowed or adjusted by a Taxing
Authority, provided that such responsible party determines that no action
should be taken to recoup such payment and the other party agrees.
"Indenture" means the Indenture relating to the Notes, substantially in
the form attached to Exhibit A hereto.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or asset. For the purposes of this Agreement,
a Person shall be deemed to own subject to a Lien any property or asset which
it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such property or asset.
2
"Material Adverse Effect" means a material adverse effect on the condition
(financial or otherwise), business, assets or results of operations of Parent
and the Subsidiaries, taken as whole.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"Notes" means the Junior Subordinated Notes of the Company due 2009, a
specimen certificate substantially the form of which is attached hereto as
Exhibit A.
"Parent 1934 Act Reports" means the reports filed by Parent in compliance
with the 1934 Act during Parent's most recent fiscal year and, in any event,
Parent's annual report on Form 10-K for the year ended December 31, 1998.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Registration Rights Agreement" means the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit B.
"Securities" means, collectively, the Notes and the Warrants.
"Subsidiary" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by Parent (including, without limitation, the
Company).
"Tax" means (i) any tax, governmental fee or other like assessment or
charge of any kind whatsoever (including, but not limited to, withholding on
amounts paid to or by any Person), together with any interest, penalty,
addition to tax or additional amount imposed by any governmental authority (a
"Taxing Authority") responsible for the imposition of any such tax (domestic or
foreign), (ii) in the case of Parent or any Subsidiary, liability for the
payment of any amount of the type described in clause (i) as a result of being
or having been before the Closing Date a member of an affiliated, consolidated,
combined or unitary group, or a party to any agreement or arrangement, as a
result of which liability of Parent or any Subsidiary to a Taxing Authority is
determined or taken
3
into account with reference to the liability of any other Person, and (iii)
liability of Parent or any Subsidiary for the payment of any amount as a result
of being party to any Tax Sharing Agreement or with respect to the payment of
any amount of the type described in (i) or (ii) as a result of any existing
express or implied obligation (including, but not limited to, an
indemnification obligation).
"Tax Sharing Agreements" means all existing agreements or arrangements
(whether or not written) binding Parent or any Subsidiary that provide for the
allocation, apportionment, sharing or assignment of any Tax liability or
benefit, or the transfer or assignment of income, revenues, receipts, or gains
for the principal purpose of determining any person's Tax liability.
"Transaction Documents" means this Agreement, the Notes, the Warrants, the
Indenture and the Registration Rights Agreement.
"Transactions" means the transactions contemplated by the Transaction
Documents.
"Warrants" means warrants to purchase an aggregate of 436,965 shares of
Common Stock, a specimen certificate substantially the form of which is
attached hereto as Exhibit C.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Authorizations 3.09
Buyers recitals
Closing 2.02
Company recitals
Damages 7.02
DLJ Buyers recitals
Environmental Laws 3.08(a)
ERISA 3.08(a)
Indemnified Party 7.03
Indemnifying Party 7.03
intellectual property 3.19
Issuer 2.01
Parent recitals
Parent Securities 3.04
Purchase Price 2.01
4
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Parent and the Company (each, an "Issuer") agree
to issue and sell to each Buyer, and each Buyer agrees, severally and not
jointly, to purchase from the applicable Issuer at the Closing such Notes and
Warrants as are set forth opposite such Buyer's name on Schedule 2.01. The
aggregate purchase price (the "Purchase Price") for the Notes and the Warrants
applicable to each Buyer is set forth opposite such Buyer's name on Schedule
2.01. The aggregate Purchase Price payable by all Buyers shall be paid at
Closing as provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Securities hereunder shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as soon as possible after
satisfaction of the conditions set forth in Article 6, or at such other time or
place as the parties hereto may agree. At the Closing:
(a) Each Buyer shall deliver to the applicable Issuer the amounts set
forth opposite its name on Schedule 2.01 with respect to the Notes and the
Warrants to be purchased by it, in immediately available funds by wire transfer
to an account of the applicable Issuer designated by such Issuer, by notice to
the Buyers, not later than two business days prior to the Closing Date.
(b) The applicable Issuer shall deliver to each Buyer duly-executed Notes
and Warrants, as the case may be, in the amounts set forth opposite such
Buyer's name on Schedule 2.01.
SECTION 2.03. Purchase Price Allocation. The Issuers and the Buyers agree
that the Purchase Price shall be allocated to the Notes and the Warrants for
U.S. federal income tax purposes in a manner to be mutually agreed by the
Issuers and the Buyers.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
Parent and the Company jointly and severally represent and warrant to the
Buyers as of the Closing Date that:
5
SECTION 3.01. Corporate Existence and Power. (a) Each Issuer is a
corporation duly incorporated or a limited liability company duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be, and has all requisite power
and authority to carry on its business as now conducted. Each Issuer is duly
qualified to do business as a foreign corporation or foreign limited liability
company, as the case may be, and is in good standing in each jurisdiction where
such qualification is necessary, except for those jurisdictions where failure
to be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect.
(b) All equity interests of each of the Issuers have been duly authorized
and validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights.
(c) Neither Issuer nor any of its subsidiaries is in violation of its
respective organizational documents or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which such
Issuer or any of its subsidiaries is a party or by which such Issuer or any of
its subsidiaries or their respective property is bound, except for such
defaults which, singly or in the aggregate, would not have a Material Adverse
Effect.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by each Issuer of the Transaction Documents to which such Issuer is
a party and the consummation of the transactions contemplated thereby are
within such Issuer's powers and have been duly authorized by all necessary
action on the part of such Issuer. This Agreement constitutes (and, when
executed and delivered, each other Transaction Document to which each Issuer is
a party will constitute) a valid and binding agreement of each Issuer,
enforceable against each of the Issuers in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability and (iii) rights to indemnity and
contribution thereunder may be limited by applicable law.
SECTION 3.03. Noncontravention. The execution, delivery and performance by
each Issuer of the Transaction Documents to which such Issuer is a party and
the consummation of the transactions contemplated thereby do not and will not
(i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
may be required under federal securities or Blue Sky laws of the various states
or have been or will be obtained prior to the Closing Date), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default
under, (A) the charter or
6
bylaws or limited liability company agreement of such Issuer or any of its
subsidiaries or (B) any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to such Issuer and its subsidiaries,
taken as a whole, to which such Issuer or any of its subsidiaries is a party or
by which such Issuer or any of its subsidiaries or their respective property is
bound, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over such issuer any of its subsidiaries or their
respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which such Issuer or any of its subsidiaries is a party or by which such Issuer
or any of its subsidiaries or their respective property is bound, or (v) result
in the termination, suspension or revocation of any Authorization (as defined
below) of such Issuer or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization, except, in
the case of clauses (i), (ii)(B), (iv) and (v), as would not, singly or in the
aggregate, have a Material Adverse Effect.
SECTION 3.04. Capitalization; Indebtedness. (a) The authorized capital
stock of Parent consists of 30,000,000 shares of Common Stock and 15,000,000
shares of Preferred Stock. After giving effect to the Closing, there will be
outstanding (i) 3,590,326 shares of Common Stock and 2,000,000 shares of
Preferred Stock, (ii) options to purchase 342,356 shares of Common Stock, (iii)
the rights associated with Parent's rights plan in place as of the date hereof
and (iv) the Warrants.
(b) All outstanding shares of capital stock of Parent have been duly
authorized and validly issued and are fully paid and non-assessable. Other than
the Parent Securities, there are no outstanding (i) shares of capital stock or
voting securities of Parent, (ii) securities of Parent convertible into or
exchangeable for shares of capital stock or voting securities of Parent or
(iii) options or other rights to acquire from Parent, or other obligation of
Parent to issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of Parent (the
items in clauses 3.04(b)(i), 3.04(b)(ii), 3.04(b)(iii) and 3.04(b)(iv) being
referred to collectively as the "Parent Securities"). There are no outstanding
obligations of Parent or any Subsidiary to repurchase, redeem or otherwise
acquire any Parent Securities, except the obligation of Parent to redeem its
Preferred Stock in accordance with the terms thereof.
(c) When executed and delivered pursuant to this Agreement, the Notes and
the Warrants will constitute valid and binding obligations of the applicable
Issuer. Upon the consummation of the Closing, the shares of Common Stock
issuable upon the exercise of the Warrants will have been duly authorized and
reserved for issuance upon exercise of the Warrants and, when issued upon such
7
exercise and payment of the exercise price thereof, will be validly issued,
fully paid and non-assessable, and the issuance of such shares is not subject
to any preemptive or similar rights.
SECTION 3.05. Subsidiaries. (a) The entities listed on Schedule 3.05
hereto are the only subsidiaries, direct or indirect, of Parent. Except as
otherwise set forth on such Schedule, all of the outstanding equity interests
of each of Parent's subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, as applicable, and are owned by Parent,
directly or indirectly through one or more subsidiaries, free and clear of any
Lien.
SECTION 3.06. Parent 34 Act Reports. Parent has made all required filings
under the 1934 Act. All of the information contained in the Parent 34 Act
Reports is correct in all material respects as of the date thereof and not
misleading.
SECTION 3.07. Litigation. (a) No action has been taken and no law,
statute, rule or regulation or order has been enacted, adopted or issued by any
governmental agency or body which prevents the execution, delivery and
performance of any of the Transaction Documents, or suspends the sale of the
Notes or the Warrants in any jurisdiction and no injunction, restraining order
or other order or relief of any nature by a federal or state court or other
tribunal of competent jurisdiction has been issued with respect to any Issuer
which would prevent or suspend the issuance or sale of the Notes or the
Warrants in any jurisdiction.
(b) There are no legal or governmental proceedings pending or threatened
to which either Issuer or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject, which might
result, singly or in the aggregate, in a Material Adverse Effect.
SECTION 3.08. Environmental Matters. (a) Neither Issuer nor any of its
subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(b) Except as otherwise set forth in the Parent 1934 Act Reports, there
are no costs or liabilities associated with Environmental Laws (including,
without
8
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
SECTION 3.09. Licenses and Permits. Each Issuer and its subsidiaries has
such permits, licenses, consents, exemptions, franchises, authorizations and
other approvals (each, an "Authorization") of, and has made all filings with
and notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease,
license and operate its respective properties and to conduct its business,
except where the failure to have any such Authorization or to make any such
filing or notice would not, singly or in the aggregate, have a Material Adverse
Effect. Each such Authorization is valid and in full force and effect and each
Issuer and its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to such Issuer or
any of its subsidiaries; except, in each case, where such failure to be valid
and in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
SECTION 3.10. Financial Statements. The historical financial statements,
together with related notes forming part of the Parent 34 Act Reports (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of Parent and
its subsidiaries on the basis stated in the Parent 34 Act Reports at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Parent 34 Act Reports (and
any amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of Parent.
SECTION 3.11. Investment Company Act. None of the Issuers is or, after
giving effect to the offering and sale of the Securities and the application of
the
9
net proceeds thereof will be, and "investment company," as such term is defined
in the Investment Company Act of 1940 as amended.
SECTION 3.12. Registration Obligations. There are no contracts, agreements
or understanding between any Issuer and any person granting such person the
right to require such Issuer to file a registration statement under the 1933
Act with respect to any securities of such Issuer or to require such Issuer to
include such securities with the securities registered pursuant to any Issuer
registration statement, except as contemplated in the Registration Rights
Agreement and the Investors' Agreement dated as of May 22, 1998 among Parent
and the investors and stockholders party thereto.
SECTION 3.13. No Violation of Regulation G, T, U or X. Neither Issuer nor
any agent thereof acting on the behalf of them has taken, and none of them will
take, any action that may cause the Transaction Agreements or the issuance or
sale of the Securities to violate Regulation G (12 C.F.R. Part 207), Regulation
T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
SECTION 3.14. No Ratings Decline. No "nationally recognized statistical
rating organization" (as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act (i) has imposed (or has informed any Issuer that it is
considering imposing) any condition (financial or otherwise) on such Issuer's
retaining any rating assigned to such Issuer or any securities of such Issuer
or (ii) has indicated to such Issuer that it is considering (A) the downgrading
suspension, or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so assigned or (B)
any change in the outlook for any rating of such Issuer or any securities of
such Issuer.
SECTION 3.15. No Material Change. Since the respective dates as of which
information is given in the Parent 34 Act Reports other than as set forth in
the Parent 34 Act Reports (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the earnings,
business, management or operations of Parent and its subsidiaries, taken as a
whole, (ii) there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or in the
long-term debt of Parent or any of its subsidiaries and (iii) neither Parent
nor any of its subsidiaries has incurred any material liability or obligation,
direct or contingent.
SECTION 3.16. No Solicitation. No form of general solicitation or general
advertising (as defined in Regulation D under the ▇▇▇▇ ▇▇▇) was used by any
10
Issuer or any of its representatives (other than the DLJ Buyers, as to whom the
Issuers make no representation) in connection with the offer and sale of the
Securities contemplated here, including, but not limited to, articles, notices
or other communications published in any newspaper, magazine or similar medium
or broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Notes or the Warrants have been issued and
sold by any Issuer within the six-month period immediately prior to the date
hereof.
SECTION 3.17. Labor Matters. There is no (i) material unfair labor
practice complaint, grievance or arbitration proceeding pending or threatened
against either Issuer before the National Labor Relations Board or any state or
local labor relations board or (ii) strike, labor dispute, slowdown or stoppage
pending or threatened against either Issuer, except for such actions specified
in clause (i) or (ii) above, which, singly or in the aggregate, would not have
a Material Adverse Effect. To the best of the Issuers' knowledge, no collective
bargaining organizing activities are taking place with respect to either
Issuer, which, singly or in the aggregate, would have a Material Adverse
Effect.
SECTION 3.18. Accounting Controls. Each Issuer maintains a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
SECTION 3.19. Intellectual Property. Except as otherwise set forth in the
Parent 34 Act Reports, Parent and its subsidiaries own or possess, or can
acquire on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("intellectual property") currently
employed by them in connection with the business now operated by them, except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a Material
Adverse Effect; and, to the best of the Issuers' knowledge, neither Parent nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of such intellectual
property which, singly or in the aggregate,
11
if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
SECTION 3.20. Indenture. Prior to the effectiveness of any registration
statement relating to the Notes, the Indenture is not required to be qualified
under the TIA.
SECTION 3.21. No Registration. No registration under the 1933 Act of the
Securities is required for the sale of the Securities to the Buyers as
contemplated hereby or for exempt resales assuming the accuracy of the Buyers'
representations and warranties and agreements set forth in Article 4.
SECTION 3.22. Certificates. Each certificate signed by an officer of any
Issuer and delivered to the Buyers or counsel for the Buyers shall be deemed to
be a representation and warranty by such Issuer to the Buyers as to the matters
covered thereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each Buyer, severally as to itself and not jointly, represents and
warrants to Parent and the Company as of the Closing Date that:
SECTION 4.01. Corporate/Partnership Existence and Power. Such Buyer is a
partnership duly organized or a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of organization.
SECTION 4.02. Corporate/Partnership Authorization. The execution, delivery
and performance by such Buyer of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated thereby are within
the powers (corporate, partnership or otherwise) of such Buyer and have been
duly authorized by all necessary action on the part of such Buyer. This
Agreement constitutes (and, when executed and delivered, each other Transaction
Document to which such Buyer is a party will constitute) a valid and binding
agreement of such Buyer.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of the Transaction Documents to which it is a party
and the consummation of the transactions contemplated thereby require no action
by or in respect of, or filing with, any governmental body, agency or official
12
(other than any filing pursuant to the HSR Act that may be required by a holder
of the Warrants in connection with the exercise of the Warrants).
SECTION 4.04. Noncontravention. The execution, delivery and performance by
such Buyer of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated thereby do not and will not (i)
violate the partnership agreement or certificate of incorporation or bylaws, as
the case may be, of such Buyer, (ii) violate any material indenture, agreement
or mortgage to which such Buyer is a party or by which such Buyer is bound, or
(iii) assuming compliance with the matters referred to in Section 4.03, violate
any applicable material law, rule, regulation, judgment, injunction, order or
decree or require any material consent of any other Person.
SECTION 4.05. Purchase for Investment. Such Buyer acknowledges that the
Securities have not been registered under the 1933 Act or any state securities
laws and that the purchase and sale of the Securities contemplated hereby is to
be effected pursuant to an exemption from the registration requirements imposed
by such laws. In this regard, such Buyer is purchasing the Securities to be
purchased by it hereunder for its own account and not with a view to, or for
sale in connection with, any distribution thereof in violation of the 1933 Act.
Such Buyer (either alone or together with its advisors) is an "accredited
investor" (as defined in Regulation D under the 1933 Act), has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in such Securities and is
capable of bearing the economic risks of such investment. Such Buyer has been
given the opportunity to ask questions of, and receive answers from, management
of Parent concerning its investment in the Issuers.
SECTION 4.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer threatened
against or affecting, such Buyer before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks
to prevent, enjoin, alter or materially delay the Transactions.
SECTION 4.07. Finders' Fees. There is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of such Buyer who might be entitled to any fee or commission from such
Buyer or from Parent or any of its Affiliates upon consummation of the
Transactions.
13
ARTICLE 5
COVENANTS OF THE PARTIES
Each party hereto agrees that:
SECTION 5.01. Best Efforts; Further Assurances. Subject to the terms and
conditions of this Agreement, such party will use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under applicable laws and regulations to consummate the
Transactions. Such party agrees to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary or desirable in order to consummate or implement expeditiously
the Transactions.
SECTION 5.02. Certain Filings. The parties hereto shall cooperate with one
another (i) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the consummation of the
Transactions and (ii) in taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers.
SECTION 5.03. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to any Transaction Document or the Transactions and, except as may be
required by applicable law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of each Party. The obligations of
each party to consummate the Closing are subject to the satisfaction of the
following conditions:
14
(a) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the
Closing.
(b) No proceeding challenging this Agreement or any of the
Transactions or seeking to prohibit, alter, prevent or materially delay
the Closing shall have been instituted by any Person before any court,
arbitrator or governmental body, agency or official and be pending, where,
in the reasonable judgment of the Buyers, on the one hand, or the Issuers,
on the other hand, there is a significant possibility of a determination
in accordance with the plaintiff's demand.
SECTION 6.02. Conditions to Obligation of the Buyers. The obligation of
the Buyers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) The Issuers shall have performed in all material respects all
of their obligations hereunder required to be performed by them on or
prior to the Closing Date and (ii) the representations and warranties of
the Issuers contained in this Agreement and in any certificate or other
writing delivered by either of them pursuant hereto shall be true in all
material respects at and as of the Closing Date (it being understood that
where any such representation and warranty already includes a material
adverse effect or materiality exception, no further materiality exception
is to be permitted by this Section 6.02(a)(ii)).
(b) There shall not be threatened, instituted or pending any action
or proceeding by any Person before any court or governmental authority or
agency, domestic or foreign, (i) seeking to restrain, prohibit or
otherwise interfere with the ownership or operation by Parent or any of
its Affiliates of all or any material portion of the business or assets of
Parent or any Subsidiary, or to compel Parent or any of its Affiliates to
dispose of all or any material portion of such businesses or assets, (ii)
seeking to impose or confirm limitations on the ability of any Buyer or
any of its Affiliates effectively to exercise full rights of ownership of
its Securities or (iii) seeking to require divestiture by any Buyer or any
of its Affiliates of any of its Securities.
(c) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed (where, in the reasonable
judgment of the Buyers, there is a significant possibility that such
proposal will be enacted), enacted, enforced, promulgated, issued or
deemed applicable to the purchase of their Securities, by any court,
government or
15
governmental authority or agency, domestic or foreign, that, in the
reasonable judgment of any Buyer has a significant possibility of,
directly or indirectly, resulting in any of the consequences referred to
in clauses 6.02(b)(i) through 6.02(b)(iii) above.
(d) Each of the Transaction Documents (other than the Indenture)
shall have been executed and delivered by the parties thereto other than
the Buyers, the conditions to closing of each of the parties to the
Transaction Documents (other than the Buyers) as set forth in such
Transaction Documents shall have been satisfied or waived and, assuming
due execution and delivery by the Buyers, each such Transaction Document
shall be in full force and effect.
(e) The costs and expenses of the Buyers referred to in Section 8.03,
shall have been paid by the Issuers.
(f) The Buyers shall have received an opinion or opinions of Weil,
Gotshal & ▇▇▇▇▇▇ (or other counsel reasonably satisfactory to the Buyers),
counsel to the Issuers, dated the Closing Date, in form and substance
reasonably satisfactory to the Buyers. In rendering such opinion, such
counsel may rely upon certificates of public officers and, as to matters
of fact, upon certificates of officers of the Issuers, copies of which
certificates shall be contemporaneously delivered to the Buyers.
(g) The Buyers shall have received all documents they may reasonably
request relating to the existence of each Issuer and the authority of each
Issuer for each of the Transaction Documents, all in form and substance
reasonably satisfactory to the Buyers.
SECTION 6.03. Conditions to Obligation of the Issuers. The obligation of
the Issuers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) The Buyers shall have performed in all material respects all
of their obligations hereunder required to be performed by them at or
prior to the Closing Date and (ii) the representations and warranties of
the Buyers contained in this Agreement and in any certificate or other
writing delivered by the Buyers pursuant hereto shall be true in all
material respects at and as of the Closing Date (it being understood that
where any such representation and warranty already includes a material
adverse effect or materiality exception, no further materiality exception
is to be permitted by this Section 6.03(a)(ii)).
16
(b) There shall not be threatened, instituted or pending any action
or proceeding by any Person before any court or governmental authority or
agency, domestic or foreign, seeking to restrain or prohibit the ownership
or operation by Parent or its Affiliates of all or any material portion of
the business or assets of Parent or any Subsidiary, or to compel Parent or
its Affiliates to dispose of all or any material portion of such
businesses or assets.
(c) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed (where, in the reasonable
judgment of the Issuers, there is a significant possibility that such
proposal will be enacted), enacted, enforced, promulgated, issued or
deemed applicable to the sale of Securities, by any court, government or
governmental authority or agency, domestic or foreign that, in the
reasonable judgment of the Issuers has a significant possibility of,
directly or indirectly, resulting in any of the consequences referred to
in Section 6.03(b) above.
(d) Each of the Transaction Documents (other than the Indenture)
shall have been executed and delivered by the parties thereto other than
the Issuers and, assuming due execution and delivery by the Issuers, each
such Transaction Document shall be in full force and effect.
(e) The Issuers shall have received all documents they may reasonably
request relating to the existence of the Buyers and the authority of such
Persons for each of the Transaction Documents, all in form and substance
reasonably satisfactory to the Issuers.
ARTICLE 7
SURVIVAL; INDEMNIFICATION
SECTION 7.01. Survival. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection
herewith shall survive the Closing until eighteen months after the Closing
Date; provided that the representations and warranties contained in Sections
3.04, 3.05, 3.08, and the covenants and agreements set forth in Articles 7 and
8 shall survive indefinitely. Notwithstanding the preceding sentence, any
covenant, agreement, representation or warranty in respect of which indemnity
may be sought under this Agreement shall survive the time at which it would
otherwise terminate pursuant to the preceding sentence, if notice of the
inaccuracy or breach thereof giving rise to
17
such right of indemnity shall have been given to the party against whom such
indemnity may be sought prior to such time.
SECTION 7.02. Indemnification. (a) Parent and the Company, without
duplication, hereby jointly and severally indemnify each Buyer against and
agree to hold such Buyer harmless from any and all damage, loss, liability and
expense (including, without limitation, reasonable expenses of investigation
and reasonable attorneys' fees and expenses in connection with any action, suit
or proceeding) ("Damages") incurred or suffered by such Buyer arising out of
any misrepresentation or breach of warranty, covenant or agreement made or to
be performed by Parent or the Company pursuant to this Agreement.
(b) Each Buyer, severally but not jointly, hereby indemnifies Parent and
the Company, without duplication, against and agrees to hold each of them
harmless from any and all Damages incurred or suffered by them arising out of
any misrepresentation or breach of warranty, covenant or agreement made or to
be performed by such Buyer pursuant to this Agreement.
(c) Any amount paid by Parent, any Subsidiary or the Buyers under Article
7 will be treated as an adjustment to the Purchase Price unless a Final
Determination causes any such amount not to constitute an adjustment to the
Purchase Price for Federal Tax purposes. In the event of such a Final
Determination, the Buyers, Parent or any Subsidiary, as the case may be, shall
pay an amount that reflects the hypothetical Tax consequences of the receipt or
accrual of such payment, using the maximum statutory rate (or rates, in the
case of an item that affects more than one Tax) applicable to the recipient of
such payment for the relevant year, reflecting for example, the effect of
deductions available for interest paid or accrued and for Taxes such as state
and local income Taxes.
SECTION 7.03. Procedures. The party seeking indemnification under Section
7.02 (the "Indemnified Party") agrees to give prompt notice to the party
against whom indemnity is sought (the "Indemnifying Party") of the assertion of
any claim, or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought under such Section. The Indemnifying Party may at
the request of the Indemnified Party participate in and control the defense of
any such suit, action or proceeding at its own expense. The Indemnifying Party
shall not be liable under Section 7.02 for any settlement effected without its
consent of any claim, litigation or proceeding in respect of which indemnity
may be sought hereunder.
18
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to the DLJ Buyers, to:
▇/▇ ▇▇▇ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Issuers, to:
Thermadyne Holdings Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
R. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
19
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
SECTION 8.02. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective, provided that the DLJ Buyers agree that DLJ Merchant Banking
Partners II, L.P. may agree to an amendment or waiver on behalf of, and as
agent for, all DLJ Buyers.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.03. Expenses. All costs and expenses incurred in connection with
the Transaction Documents shall be paid by the party incurring such cost or
expense; provided that (i) any costs and expenses (including fees and expenses
of counsel) of each Buyer shall be reimbursed by the Issuers at the Closing and
(ii) all transfer, documentary, sales, use, stamp, registration, value added
and other such Taxes and fees (including any penalties and interest) incurred
in connection with transactions contemplated by this Agreement shall be paid by
Parent when due, and Parent will, at its own expense, file all necessary Tax
returns and other documentation with respect to all such Taxes and fees, and,
if required by applicable law, the Buyers will join in the execution of any
such Tax returns and other documentation.
SECTION 8.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 8.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard
to the conflicts of law rules of such state.
20
SECTION 8.06. Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 8.01 shall
be deemed effective service of process on such party.
SECTION 8.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.08. Counterparts; Third Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. No provision of this Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
SECTION 8.09. Appointment of Agent. Each of the DLJ Buyers hereby
irrevocably constitutes and appoints DLJ Merchant Banking Partners II, L.P. as
its agent and true and lawful attorney in fact with full power and discretion,
in the name of and for and on behalf of each of the DLJ Buyers, in connection
with all matters arising from, contemplated by or relating to the Transaction
Documents. The powers of DLJ Merchant Banking Partners II, L.P. include,
without limitation, the power to represent each of the DLJ Buyers with respect
to all aspects of the Transaction Documents, which power shall include, without
limitation, the power to (i) waive any conditions of the Transaction Documents,
(ii) amend the Transaction Documents in any respect, (iii) receive notices or
other communications, (iv) deliver any notices, certificates or other documents
required and (v) take all such other action and to do all such other things as
DLJ Merchant Banking Partners II, ▇.▇. ▇▇▇▇▇ necessary or advisable with
respect to the Transaction Documents. The Issuers shall have the right to rely
upon the acts
21
taken or omitted to be taken by DLJ Merchant Banking Partners II, L.P. on
behalf of the DLJ Buyers, and shall have no duty to inquire as to the acts and
omissions of DLJ Merchant Banking Partners II, L.P.
SECTION 8.10. Entire Agreement. The Transaction Documents constitute the
entire agreement between the parties with respect to the subject matter of the
Transaction Documents and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter
of the Transaction Documents.
SECTION 8.11. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 8.12. Enforcement of Voting Rights. In the event that after
December 15, 2004 the Company does not pay interest in cash on four consecutive
Interest Payment Dates (as defined in the Indenture) or on six Interest Payment
Dates, each of the DLJ Buyers agrees to cause, to the extent such DLJ Buyers
and their affiliates shall have the power to cause, two people selected by the
Holders (as defined in the Indenture) of a majority of the Accreted Value (as
defined in the Indenture) of the Notes, voting as a single class, to be elected
to the Board of Directors of Parent. Further, each of the DLJ Buyers agrees to
cause, to the extent such DLJ Buyers shall have the power to cause, such
directors to serve on the Board of Directors of Parent until such time as the
Company pays interest in cash on four consecutive Interest Payment Dates
following their election.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
THERMADYNE HOLDINGS CORPORATION.
By:
------------------------------------
Name:
Title:
THERMADYNE MFG. LLC
By:
------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By:
------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A,
L.P.
By:
------------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By:
------------------------------------
Name:
Title:
23
DLJ DIVERSIFIED PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By:
------------------------------------
Name:
Title:
DLJM FUNDING II, INC.
By:
------------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By:
------------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
By:
------------------------------------
Name:
Title:
24
DLJ ESC II L.P.
By:
------------------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
By:
------------------------------------
Name:
Title:
25
Schedule 2.01
Notes to be Purchased from the Company
and
Warrants to be Purchased from Parent
Buyers Securities Purchase Price
----------------------------------------------------------------------------------------
DLJ Merchant Banking (1) $15,748,000 Initial Accreted $15,748,000
Partners II, L.P. Value of Notes
(2) Warrants to purchase 275,255
shares of Common Stock
DLJ Merchant Banking (1) $627,000 Initial Accreted $627,000
Partners II-A, L.P. Value of Notes
(2) Warrants to purchase 10,962
shares of Common Stock
DLJ Offshore Partners (1) $774,000 Initial Accreted $774,000
II, C.V. Value of Notes
(2) Warrants to purchase 13,536
shares of Common Stock
DLJ Diversified (1) $921,000 Initial Accreted $921,000
Partners, L.P. Value of Notes
(2) Warrants to purchase 16,093
shares of Common Stock
DLJ Diversified (1) $342,000 Initial Accreted $342,000
Partners-A, L.P. Value of Notes
(2) Warrants to purchase 5,976
shares of Common Stock
DLJMB Funding II, Inc. (1) $3,212,000 Initial Accreted $3,212,000
Value of Notes
(2) Warrants to purchase 56,152
shares of Common Stock
DLJ Millennium (1) $255,000 Initial Accreted $255,000
Partners, L.P. Value of Notes
(2) Warrants to purchase 4,451
shares of Common Stock
Buyers Securities Purchase Price
----------------------------------------------------------------------------------------
DLJ Millennium (1) $50,000 Initial Accreted Value $50,000
Partners-A, L.P. amount at maturity of Notes
(2) Warrants to purchase 868
shares of Common Stock
DLJ EAB Partners, L.P. (1) $71,000 Initial Accreted Value $71,000
amount at maturity of Notes
(2) Warrants to purchase 1,236
shares of Common Stock
DLJ ESC II L.P. (1) $2,970,000 Initial Accreted $2,970,000
Value of Notes
(2) Warrants to purchase 51,906
shares of Common Stock
DLJ First ESC, L.P. (1) $30,000 Initial Accreted Value $30,000
of Notes
(2) Warrants to purchase 530
shares of Common Stock
=======================================================================================
TOTALS 1) $25,000,000 Initial Accreted $25,000,000
Value of Notes
(2) Warrants to purchase 436,965
shares of Common Stock
----------------------------------------------------------------------------------------
2
Schedule 3.05
Name Jurisdiction of Organization
---- ----------------------------
Arcair Stoody Europe S.A. Belgium
BBM Srl* Italy
C&G Systems Holding, Inc. Delaware
C&G Systems, Inc. Ililnois
Canadian Cylinder Company Canada
Comet Property Holdings, Inc. Philippines
Comweld Group Pty. Ltd Australia
Comweld Malaysia SDN BHD Malaysia
Comweld Philippines Inc. Philippines
▇▇▇▇▇ Natural Gas Systems, Inc. Missouri
Duxtech Pty. Ltd. Australia
Genset SpA Italy
Marison Cylinder Company Delaware
MECO Holding Company Delaware
Metalservice SA Chile
Modern Engineering Company, Inc. Missouri
Ocim Srl* Italy
Palco Trading Company* Dubai
Philippine Welding Equipment Inc.* Philippines
PT Thermadyne Utama Indonesia Indonesia
PT Comweld Indonesia Indonesia
Quetack Pty. Ltd Australia
Quetala Pty. Ltd. Australia
Quetala Unit Trust Australia
Soltec SA Chile
Stoody Company Delaware
TAG Realty, Inc. Texas
Tecmo Srl Italy
Tec. Mo. Cut Srl* Italy
Tec. Mo. Control Srl* Italy
THC Italia Srl Italy
Thermadyne Asia/Pacific PTE Ltd. Singapore
Thermadyne Asia SDN BHD Malaysia
3
Name Jurisdiction of Organization
---- ----------------------------
Thermadyne Australia Pty. Ltd. Australia
Thermadyne Brazil Holdings, Ltd. Cayman Islands
Thermadyne Capital Corp. Delaware
Thermadyne Chile Holdings, Ltd. Cayman Islands
Thermadyne Cylinder Company California
Thermadyne de Brasil S.C. Ltda Brazil
Thermadyne de Mexico S.A. de C.V. Mexico
Thermadyne Foreign Sales Corporation Barbados
Thermadyne Hong Kong Limited Hong Kong
Thermadyne Industries, Inc. Delaware
Thermadyne Industries Limited United Kingdom
Thermadyne International Corp. Delaware
Thermadyne Italia Srl Italy
Thermadyne Japan, K.K. Japan
Thermadyne Korea, Limited Korea
Thermadyne Receivables, Inc. Delaware
Thermadyne South America Holdings, Ltd. Cayman Islands
Thermadyne Thailand Co. Ltd.* Thailand
Thermadyne ▇▇▇▇▇▇ Ltda. Brazil
Thermadyne Welding Products Canada, Ltd. Canada
Thermal Arc, Inc. Delaware
Thermal Arc Philippines, Inc. Philippines
Thermal Dynamics Corp. Delaware
Tweco Products, Inc. Delaware
▇▇▇▇▇▇ ▇▇▇▇▇ International, Inc. Delaware
▇▇▇▇▇▇ Equipment Company Delaware
▇▇▇▇▇▇ Gas Systems, Inc. Delaware
Wichita Warehouse Corp. Kansas
100% of the stock of all domestic subsidiaries are pledged pursuant to the
Credit Agreement.
65% of the stock of all foreign subsidiaries are pledged pursuant to the Credit
Agreement.
*These subsidiaries are not 100% owned.
4
EXHIBIT A
THIS NOTE IS SUBJECT TO, AND IS TRANSFERABLE ONLY UPON COMPLIANCE
WITH, THE PROVISIONS OF A SUBSCRIPTION AGREEMENT DATED AS OF DECEMBER 22,
1999. COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICE OF
THE COMPANY AT ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE U.S. OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE U.S. TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE COMPANY), AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
ACCRETED VALUE OF NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE U.S. IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 903 OR RULE 904, AS APPLICABLE, UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (G) PURSUANT TO ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
SECTION 3.14(J) OF THE INDENTURE AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME
PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE COMPANY. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A NON-U.S. PERSON THAT, IN EITHER CASE, IS NOT A
QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S." AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE COMPANY TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
THERMADYNE MFG. LLC.
Junior Subordinated Note due 2009
Initial Accreted Value
No. ___ $__________
THERMADYNE MFG. LLC, a Delaware limited liability company (the
"Company"), which term includes any successor Persons under the Indenture
hereinafter referred to), for value received, promises to pay to __________,
or its registered assigns, the Accreted Value (as defined below) of this Note,
on December 15, 2009.
2
"Accreted Value" means with respect to this Note, as of any date of
determination, the sum of: (a) the Accreted Value of such Note on the
immediately preceding Interest Payment Date (in the event such date of
determination falls before the first Interest Payment Date, the "Initial
Accreted Value" specified on the face hereof) plus (b) an amount determined by
multiplying (i) the amount referred to in clause (a) by (ii) 15% (provided
that the accretion rate applicable to any period or portion of a period during
which no interest accrues that occurs after December 15, 2004 shall be 16%) by
(iii) the number of days in the period from and including the preceding
Interest Payment Date to such date of determination divided by 360, less (c)
any interest that accrues with respect to such period in accordance with the
terms of the Note.
Interest Rate:
Prior to December 15, 2004, unless a Cash Payment Notice (as defined
below) is properly delivered by the Company, no interest shall accrue
or be payable with respect to the Notes. If the Company elects to pay
interest on any Interest Payment Date prior to December 15, 2004, the
Company shall give written notice (each such notice a "Cash Payment
Notice") of such election to Holders five business days prior to the
immediately preceding Interest Payment Date. Commencing on such
immediately preceding Interest Payment Date until such Interest
Payment Date for which a Cash Payment Notice has been properly
delivered, interest will accrue and be payable at a rate of 15% per
annum to Holders of record of the Notes at the close of business on
the Regular Record Date immediately preceding the Interest Payment
Date for which such Cash Payment Notice has been properly delivered,
whether or not a Business Day. Failure to pay interest after proper
delivery of a Cash Payment Notice for any reason shall not constitute
a breach of this Note or the Indenture and the Accreted Value shall
be determined as if such Cash Payment Notice had not been delivered.
On or after December 15, 2004 interest will accrue and be payable at
a rate of 15% per annum on each Interest Payment Date to Holders of
record of the Notes at the close of business on the immediately
preceding Regular Record Date; provided, that if and for so long as
payment of interest on the Notes is prohibited under the terms of the
Credit Agreement (as defined in the Indenture) interest shall not
accrue or be payable with respect to the Notes.
Interest Payment Dates: March 15, June 15, September 15 and
December 15 of each year.
3
Regular Record Dates: March 1, June 1, September 1 and
December 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: December 22, 1999
THERMADYNE MFG. LLC, as Issuer
By:
---------------------------
Name:
Title:
5
THERMADYNE MFG. LLC
Junior Subordinated Note due 2009
This Note is one of a duly authorized issue of Notes of the Company
consisting of other Junior Subordinated Notes due 2009 of the Company issued
on December 22, 1999 and any replacement Notes issued in exchange for, or in
lieu of, the foregoing in accordance with the Indenture. The Notes are limited
in aggregate principal at maturity to the Accreted Value attributable to
$25,000,000. All of such Notes shall be treated as a single issue and vote
together as one class for all purposes of this Note and the Indenture.
1. Incorporation by Reference of Provisions of the Indenture.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture (as amended in accordance herewith, the
"Indenture") attached hereto as Exhibit A. At all times during which an
indenture is not required to be qualified under the TIA with respect to the
Notes or the Indenture has not otherwise been executed and delivered, to the
extent not inconsistent with any other terms of the Notes set forth herein,
all of the terms and conditions of the Indenture shall be and are hereby
incorporated by this reference in the Notes as if fully set forth herein, and
shall be binding upon the Company and, by accepting a Note, each Holder, and
inure to the benefit of the Holders of the Notes, except that, to the extent
that the Indenture requires (i) any notices, certificates or other items to be
delivered by the Company to the Trustee or any Paying Agent, such notices,
certificates or other items shall be delivered instead to each Holder, (ii)
any notices, certificates or other items to be delivered to the Trustee shall
be delivered instead to the Company (and shall be delivered by the Company to
each Holder), (iii) any notices, certificates or other items to be delivered
by the Trustee to the Holders, such notices, certificates or other items shall
be delivered instead by the Company to the Holders, (iv) any payments to be
made by the Company to the Trustee or Paying Agent for payment to Holders,
such payments shall instead be paid directly by the Company to the applicable
Holder in the same manner as set forth in Section 3 below, (v) approval of the
form of Notes or notations, legends or endorsements thereon by the Trustee,
the Holders of a majority in outstanding principal amount of the Notes shall
instead approve such form and notations, legends or endorsements (the form of
Notes delivered to the initial Holders on the date of original issuance of the
Notes and notations, legends and endorsements thereon being deemed to have
been so approved) , (vi) any Note to be authenticated by the Trustee or an
Authenticating Agent, the Notes shall instead be authenticated by the Company
(the execution and delivery of any Note by manual signature of the Company to
be deemed to constitute such
6
authentication for all purposes), (vii) that a Person other than the Company
and any Affiliate thereof act as Paying Agent for presentation or surrender of
Notes for payment, the Company or any Affiliate thereof may nonetheless so
act, (viii) the Company to initially appoint the Trustee as Registrar or
Paying Agent (to the extent of acting as agent for receiving surrender or
presentations of, but not deposits of payments on, Notes) and agents for
service of demands and notices in connection with the Notes, the Company
instead hereby appoints its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for such purpose (with Section 4.02 of the Indenture not to
apply thereto), (ix) Notes to be canceled by the Trustee, such Notes shall
instead be canceled by the Company, (x) the Opinions of Counsel to be
delivered to the Trustee pursuant to the Indenture shall instead be delivered
to the Holders, (xi) any Notes to be surrendered or forwarded to the Trustee
or any Paying Agent or Registrar, such Notes shall be surrendered or forwarded
instead to the Company, (xii) any notices, certificates or other items to be
delivered by the Holders to the Registrar or Paying Agent, such notices,
certificates or other items shall be delivered instead to the Company and
(xiii) Notes to be redeemed upon a partial redemption to be selected by the
Trustee, such Notes shall be selected instead by the Company.
2. Accreted Value and Interest; Subordination. The Company agrees
to pay the Accreted Value of this Note on December 15, 2009.
The Company agrees to pay interest on the Accreted Value of this Note
at the rate and in the manner specified below.
"Accreted Value" means with respect to this Note, as of any date of
determination, the sum of: (a) the Accreted Value of such Note on the
immediately preceding Interest Payment Date (in the event such date of
determination falls before the first Interest Payment Date, the "Initial
Accreted Value" specified on the face hereof) plus (b) an amount determined by
multiplying (i) the amount referred to in clause (a) by (ii) 15% (provided
that the accretion rate applicable to any period or portion of a period during
which no interest accrues on the Notes that occurs after December 15, 2004
shall be 16%) by (iii) the number of days in the period from and including the
preceding Interest Payment Date to such date of determination divided by 360,
less (c) any interest that accrues with respect to such period in accordance
with the terms of the Note.
Interest Rate:
Prior to December 15, 2004, unless a Cash Payment Notice (as defined
below) is properly delivered by the Company, no interest shall accrue
or be payable with respect to the Notes. If the Company elects to pay
interest
7
on any Interest Payment Date prior to December 15, 2004, the Company
shall give written notice (each such notice a "Cash Payment Notice")
of such election to Holders five business days prior to the
immediately preceding Interest Payment Date. Commencing on such
immediately preceding Interest Payment Date until such Interest
Payment Date for which a Cash Payment Notice has been properly
delivered, interest will accrue and be payable at a rate of 15% per
annum to Holders of record of the Notes at the close of business on
the Regular Record Date immediately preceding the Interest Payment
Date for which such Cash Payment Notice has been properly delivered,
whether or not a Business Day. Failure to pay interest after proper
delivery of a Cash Payment Notice for any reason shall not constitute
a branch of this Note or the Indenture and the Accreted Value shall
be determined as if such Cash Payment Notice had not been delivered.
On or after December 15, 2004 interest will accrue and be payable at
a rate of 15% per annum on each Interest Payment Date to Holders of
record of the Notes at the close of business on the immediately
preceding Regular Record Date; provided, that if and for so long as
payment of interest on the Notes is prohibited under the terms of the
Credit Agreement (as defined in the Indenture) interest shall not
accrue or be payable with respect to the Notes.
Interest on this Note will accrue as and to the extent set forth
above; provided that, after December 15, 2004 if there is no failure or delay
in the payment of interest and if this Note is authenticated between a Regular
Record Date and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue payments of interest and
Accreted Value, to the extent lawful, at a rate per annum equal to 1% per
annum in excess of the rate of interest applicable to the Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness and all Senior
Subordinated Indebtedness, and this Note is issued subject to such provisions.
Each Holder of this Note, by accepting the same, agrees to and shall be bound
by such provisions and agrees to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture.
3. Method of Payment. The Company will pay interest on the Notes on
each Interest Payment Date for which interest is to be paid to the Persons who
are
8
Holders (as reflected in the Register at the close of business on the Regular
Record Date immediately preceding the Interest Payment Date), in each case,
even if the Note is canceled on registration of transfer or registration of
exchange after such Regular Record Date; provided that, with respect to the
payment of Accreted Value at maturity, the Company will make payment to the
Holder that surrenders this Note to any Paying Agent (which is initially the
Company) on or after December 15, 2009.
The Company will make all payments hereunder in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company will make all payments hereunder by wire transfer
of immediately available funds to the accounts specified by the Holder hereof
or, if no such account is specified, by mailing a check to the Holder's
registered address. If a payment date is a date other than a Business Day,
payment may be made at that place on the next succeeding day that is a
Business Day and no interest shall accrue for the intervening period.
4. Paying Agent and Registrar. Initially, the Company will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar upon written notice to the Holders. The Company, any Subsidiary or
any Affiliate of any of them may act as Paying Agent, Registrar or
co-registrar.
5. Indenture; Limitations. In the event an indenture is required to
be qualified under the Trust Indenture Act of 1939 (U.S. Code SS 77aaa-77bbbb),
as amended from time to time (the "TIA"), with respect to the Notes, or at any
time upon the request of Holders of in excess of 25% in aggregate principal
amount of the outstanding Notes, the Company shall, and at any other time the
Company, in its sole discretion, may, appoint a trustee (the "Trustee") who
satisfies the eligibility requirements set forth in Section 7.10 of the
Indenture and, in any such event, the Company shall take whatever actions are
necessary to cause an Indenture substantially in the form of Exhibit A attached
hereto to be executed and delivered by the Company and the Trustee and to be
qualified under the TIA. In such event, (i) this Note shall be deemed to be one
of an issue of Notes of the Company issued under the Indenture; (ii) the terms
of the Notes shall be deemed to include those stated in the Indenture and those
made part of the Indenture by reference to the TIA, as amended from time to
time; and (iii) the Notes shall be subject to all such terms. Holders of Notes
are referred to the Indenture and the TIA for a statement of all such terms. In
such event, the Company may require holders of the Notes, and each Holder by his
or her acceptance hereof agrees upon the Company's request, to surrender to the
Trustee all Notes in the form hereof in exchange for replacement Notes
substantially in the form of Exhibit A to the Indenture.
9
The Notes are unsecured junior subordinated obligations of the
Company.
6. Optional Redemption. The Notes may be redeemed at the option of
the Company, in whole, at any time and from time to time, on and prior to
maturity at the following Redemption Prices (expressed in percentages of the
Accreted Value thereof on the relevant Redemption Date), plus accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date); provided that the Company shall not
optionally redeem any Notes except and to the extent permitted by the Credit
Agreement,
(a) if redeemed prior to December 15, 2004 at a redemption price
equal to 115% of the Accreted Value of the Notes; and
(b) if redeemed during the 12-month period commencing December 15 of
each of the years set forth below:
Year Redemption Price
2004............................................. 107.5%
2005............................................. 105.0%
2006............................................. 102.5%
2007 and thereafter.............................. 100%
Notice of a redemption will be mailed, first-class postage prepaid,
at least 30 days but not more than 60 days before the Redemption Date to each
Holder's registered address. On and after the Redemption Date, interest ceases
to accrue on, and the Accreted Value shall cease to increase with respect to,
Notes or portions of Notes called for redemption, unless the Company defaults
in the payment of the Redemption Price.
7. Repurchase upon a Change in Control. Upon the occurrence of a
Change in Control, each Holder shall have the right to require that the
Company repurchase such Holder's Notes at a purchase price in cash equal to
101% of the Accreted Value thereof on the date of purchase, plus, if
applicable, accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date); provided, that
the Company shall not be required to
10
repurchase Notes upon a Change of Control if the Company is unable to obtain
all necessary consents under the Credit Agreement for such repurchase.
8. Denominations; Transfer; Exchange. The Notes are in fully
registered form without coupons, in denominations of $1,000 and any integral
multiples of $1,000. A Holder may register the transfer or exchange of Notes
in accordance with the Indenture. The Company may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or permitted by the Indenture.
9. Persons Deemed Owners. A Holder may be treated as the owner of a
Note for all purposes.
10. Discharge Prior to Redemption or Maturity. If the Company
irrevocably deposits, or causes to be deposited, with a trustee who could
qualify to serve as Trustee under the Indenture money or U.S. Government
Obligations sufficient to pay the then outstanding Accreted Value of and
accrued interest, if any, on the Notes (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes, except in certain
circumstances for certain sections thereof, and (b) to redemption or maturity,
the Company will be discharged from certain covenants set forth in the
Indenture.
11. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate Accreted Value of the Notes
then Outstanding. Without notice to or the consent of any Holder, the Company
may amend the Indenture or the Notes to the extent set forth in the Indenture.
12. Restrictive Covenants. The Indenture contains certain covenants,
including, without limitation, covenants with respect to the following
matters: (i) redemption of or payments on Junior Securities and Parity
Securities; (ii) dividends on Junior Securities; (iii) transactions with
Affiliates; and (iv) repurchase of Notes upon a Change in Control. Within 120
days after the end of each fiscal year, the Company must report to the Holders
on compliance with such limitations.
13. Voting. The Subscription Agreement dated as of December 22, 1999
relating to the initial purchase of this Note provides that in the event that
after December 15, 2004 the Company does not pay interest in cash on four
consecutive Interest Payment Dates or on six Interest Payment Dates, the
Principal and its affiliates who are signatories to the Subscription Agreement
shall cause, to the extent that they shall have the power to so cause, two
members
11
selected by the Holders of a majority of the Accreted Value of the Notes,
voting as a single class, to be elected to the Board of Directors of Parent.
Further, the Principal and such affiliates shall cause, to the extent that
they shall have the power to so cause, such directors to serve on the Board of
Directors until such time as the Company pays interest in cash on four
consecutive Interest Payment Dates following their election.
14. Successor Persons. When a successor person or other entity
(other than a Subsidiary of the Company) assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor person will be
released from those obligations.
15. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
16. Provisions of Indenture. Each Holder, by accepting a Note,
agrees, subject to Section 1 above, to be bound by all of the terms and
provisions of the Indenture, as the same may be amended from time to time.
17. Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by commercial courier service, by telex, by telecopier
or registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Thermadyne Holdings Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
R. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice required to be given to a Holder shall be deemed to have
been given upon the mailing by first class mail, postage prepaid, of such
notices to Holders at their registered address as recorded in the Register and
shall be sufficiently given to a Holder if so mailed within the time
prescribed.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
13
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
--------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
--------------------------------------------------------------------------------
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
14
In connection with any transfer of this Note occurring prior to the
Resale Restriction Termination Date for this Note, the undersigned confirms
that without utilizing any general solicitation or general advertising that:
Check One
(a) |_| this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
(b) |_| this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Company shall not be
obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.10 of the Indenture shall have
been satisfied.
Date:
-----------------------
----------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
Signature Guarantee:
-------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Company, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Company
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
15
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:
--------------------------
--------------------------------
To be executed by an executive officer
16
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.10 of the Indenture, check the box: |_|
If you wish to have a portion of this Note purchased by the Company
pursuant to 4.10 of the Indenture, state the amount (in Accreted Value) below:
$
---------------------.
Date:
---------------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
-----------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
B-1
EXHIBIT C
THERMADYNE HOLDINGS CORPORATION
Warrant for the Purchase of Shares of
Thermadyne Holdings Corporation
No. ___ Warrant to Purchase
_____ Shares of
Common Stock
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH.
FOR VALUE RECEIVED, THERMADYNE HOLDINGS CORPORATION, a Delaware
corporation (the "Company"), hereby certifies that __________, its successor or
permitted assigns (the "Holder"), is entitled, subject to the provisions of this
Warrant, to purchase from the Company, at the times specified herein, __________
fully paid and non-assessable shares of Common Stock of the Company, par value $
0.01 per share (the "Warrant Shares"), at a purchase price per share equal to
the Exercise Price (as hereinafter defined). The number of Warrant Shares to be
received upon the exercise of this Warrant and the price to be paid for a
Warrant Share are subject to adjustment from time to time as hereinafter set
forth.
(a) DEFINITIONS.
The following terms, as used herein, have the following meanings:
"Affiliate" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Common Stock" means the Common Stock, par value $0.01 per share, of
the Company or any other security for which this Warrant may be exercised
pursuant to paragraph (i) hereof after the occurrence of any of the transactions
described in such paragraph.
"Exercise Price" means $0.01 per Warrant Share, such Exercise Price to
be adjusted from time to time as provided herein.
"Expiration Date" means December 15, 2009 at 5:00 p.m. New York
City time.
"Fair Market Value" means, with respect to one share of Common Stock on
any date, the Current Market Price Per Common Share as defined in paragraph
(h)(3) hereof.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Principal Holders" means, on any date, the Holders of at least 50% of
the Warrants.
"Subscription Agreement" means the Subscription Agreement dated as of
the date hereof between the Company, Thermadyne Mfg. LLC and the investors party
thereto.
"Warrants" means the Warrants issued pursuant to the Subscription
Agreement.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant in whole
or in part at any time, or from time to time, until the Expiration
Date or, if such day is not a Business Day, then on the next
succeeding day that shall be a Business Day. To exercise this
Warrant, the Holder shall execute and deliver to the Company a
Warrant Exercise Notice substantially in the form annexed hereto.
No earlier than ten days after delivery of the Warrant Exercise
Notice, the Holder shall deliver to the Company this Warrant
Certificate duly executed by the Holder, together with payment of
2
the applicable Exercise Price. Upon such delivery and payment, the
Holder shall be deemed to be the holder of record of the Warrant
Shares subject to such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then be
actually delivered to the Holder. Notwithstanding anything herein
to the contrary, in lieu of payment in cash of the applicable
Exercise Price, the Holder may elect (i) to receive upon exercise
of this Warrant, the number of Warrant Shares reduced by a number
of shares of Common Stock having the aggregate Fair Market Value
equal to the aggregate Exercise Price for the Warrant Shares, (ii)
to deliver as payment, in whole or in part of the aggregate
Exercise Price, shares of Common Stock having the aggregate Fair
Market Value equal to the applicable portion of the aggregate
Exercise Price for the Warrant Shares or (iii) to deliver as
payment, in whole or in part of the aggregate Exercise Price, such
number of Warrants which, if exercised, would result in a number
of shares of Common Stock having an aggregate Fair Market Value
equal to the applicable portion of the aggregate Exercise Price
for the Warrant Shares. Notwithstanding anything to the contrary
in this paragraph (b)(1), if the aggregate Fair Market Value of
the Common Stock applied or delivered pursuant to (i), (ii) or
(iii) above exceeds the aggregate Exercise Price, in no event
shall the Holder be entitled to receive any amounts from the
Company.
(2) The Exercise Price may be paid in cash or by certified
or official bank check or bank cashier's check payable to the
order of the Company or by any combination of such cash or check.
The Company shall pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or
delivery of the Warrant Shares.
(3) If the Holder exercises this Warrant in part, this
Warrant Certificate shall be surrendered by the Holder to the
Company and a new Warrant Certificate of the same tenor and for
the unexercised number of Warrant Shares shall be executed by the
Company. The Company shall register the new Warrant Certificate in
the name of the Holder or in such name or names of its transferee
pursuant to paragraph (f) hereof as may be directed in writing by
the Holder and deliver the new Warrant Certificate to the Person
or Persons entitled to receive the same.
3
(4) Upon surrender of this Warrant Certificate in
conformity with the foregoing provisions, the Company shall
transfer to the Holder of this Warrant Certificate appropriate
evidence of ownership of the shares of Common Stock or other
securities or property (including any money) to which the Holder
is entitled, registered or otherwise placed in, or payable to the
order of, the name or names of the Holder or such transferee as
may be directed in writing by the Holder, and shall deliver such
evidence of ownership and any other securities or property
(including any money) to the Person or Persons entitled to receive
the same, together with an amount in cash in lieu of any fraction
of a share as provided in paragraph (e) below.
(c) RESTRICTIVE LEGEND. Certificates representing shares of Common
Stock issued pursuant to this Warrant shall bear a legend substantially in the
form of the legend set forth on the first page of this Warrant Certificate to
the extent that and for so long as such legend is applicable.
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
it shall reserve for issuance and delivery upon exercise of this Warrant such
number of its authorized but unissued shares of Common Stock or other securities
of the Company from time to time issuable upon exercise of this Warrant as will
be sufficient to permit the exercise in full of this Warrant. All such shares
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable, free and clear of all liens, security
interests, charges and other encumbrances or restrictions on sale and free and
clear of all preemptive rights.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Current Market Price Per Common Share (as defined in paragraph (h)(3)) at
the date of such exercise.
The Company further agrees that it will not change the par value of the
Common Stock from par value $0.01 per share to any higher par value which
exceeds the Exercise Price then in effect, and will reduce the par value of the
Common Stock upon any event described in paragraph (h) that would, but for this
provision, reduce the Exercise Price below the par value of the Common Stock.
4
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject to the
provisions of a Registration Rights Agreement dated as of December
22, 1999. Each holder of this Warrant Certificate by holding the
same, consents and agrees that the registered holder hereof may be
treated by the Company and all other persons dealing with this
Warrant Certificate as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented
hereby. The Holder, by its acceptance of this Warrant, will be
subject to the provisions of, and will have the benefits of, the
Registration Rights Agreement.
(2) Upon surrender of this Warrant to the Company,
together with the attached Warrant Assignment Form duly executed,
the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee or assignees named in such
instrument of assignment (and, if the Holder's entire interest is
not being assigned, in the name of the Holder) and this Warrant
shall promptly be cancelled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it (in the exercise of its reasonable discretion) of
the loss, theft, destruction or mutilation of this Warrant Certificate, and (in
the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant
Certificate, if mutilated, the Company shall execute and deliver a new Warrant
Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and
the number of shares of Common Stock for which this Warrant may be exercised
shall be subject to adjustment from time to time upon the occurrence of certain
events as provided in this paragraph (h); provided that notwithstanding anything
to the contrary contained herein, the Exercise Price shall not be less than the
par value of the Common Stock, as such par value may be reduced from time to
time in accordance with paragraph (e).
(1) In case the Company shall at any time after the date
hereof (i) declare a dividend or make a distribution on Common
Stock payable in Common Stock, (ii) subdivide or split the
outstanding Common Stock, (iii) combine or reclassify the
outstanding Common Stock into a smaller number of shares, or (iv)
issue any shares of its capital stock in a reclassification of
5
Common Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is the
surviving corporation), the Exercise Price in effect at the time
of the record date for such dividend or distribution or of the
effective date of such subdivision, split, combination or
reclassification shall be proportionately adjusted so that, after
giving effect to paragraph (h)(5), the exercise of this Warrant
after such time shall entitle the holder to receive the aggregate
number of shares of Common Stock or other securities of the
Company (or shares of any security into which such shares of
Common Stock have been reclassified pursuant to clause (iii) or
(iv) above) which, if this Warrant had been exercised immediately
prior to such time, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
distribution, subdivision, split, combination or reclassification.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(2) In case the Company shall fix a record date for the
making of a distribution to holders of Common Stock (including any
such distribution made in connection with a consolidation or
merger in which the Company is the surviving corporation) of
evidences of indebtedness, cash, assets or other property (other
than dividends payable in Common Stock), the Exercise Price to be
in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the
Current Market Price Per Common Share on such record date, less
the fair market value (determined as set forth below) of the
portion of the evidences of indebtedness, cash, assets or other
property so to be distributed which is applicable to one share of
Common Stock, and the denominator of which shall be such Current
Market Price Per Common Share. Such adjustments shall be made
successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Exercise Price
shall again be adjusted to be the Exercise Price which would then
be in effect if such record date had not been fixed. The fair
market value of any such evidences of indebtedness, assets or
other property shall be determined by the Board of Directors of
the Company; provided that if the Principal Holders shall object
to any such determination, the Board of Directors shall retain an
independent appraiser reasonably satisfactory to the Principal
Holders to determine such fair market value. The Holder shall be
notified promptly of any
6
such distribution and furnished with a description and the fair
market value thereof, as determined by the Board of Directors.
(3) For the purpose of any computation under paragraph (e)
or paragraph (h)(2) hereof, on any determination date, the Current
Market Price Per Common Share shall be deemed to be the average
(weighted by daily trading volume) of the Daily Prices (as defined
below) per share of the Common Stock for the 20 consecutive
trading days ending three days prior to such date. "Daily Price"
means (1) if the shares of Common Stock then are listed and traded
on the New York Stock Exchange, Inc. ("NYSE"), the closing price
on such day as reported on the NYSE Composite Transactions Tape;
(2) if the shares of Common Stock then are not listed and traded
on the NYSE, the closing price on such day as reported by the
principal national securities exchange on which the shares are
listed and traded; (3) if the shares of Common Stock then are not
listed and traded on any such securities exchange, the last
reported sale price on such day on the National Market of the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ"); (4) if the shares of Common Stock
then are not listed and traded on any such securities exchange and
not traded on the NASDAQ National Market, the average of the
highest reported bid and lowest reported asked price on such day
as reported by NASDAQ; or (5) if such shares are not listed and
traded on any such securities exchange, not traded on the NASDAQ
National Market and bid and asked prices are not reported by
NASDAQ, then the average of the closing bid and asked prices, as
reported by The Wall Street Journal for the over-the-counter
market. If on any determination date the shares of Common Stock
are not quoted by any such organization, the Current Market Price
Per Common Share shall be the fair market value of such shares on
such determination date as determined by the Board of Directors,
without regard to considerations of the lack of liquidity or
applicable regulatory restrictions. If the Principal Holders shall
object to any determination by the Board of Directors of the
Current Market Price Per Common Share, the Current Market Price
Per Common Share shall be the fair market value per share of
Common Stock as determined by an independent appraiser retained by
the Company and reasonably acceptable to the Principal Holders.
The expenses of such independent appraiser shall be paid by (x)
the Principal Holders, if the fair market value determined by such
appraiser is less than that determined by the Board of Directors,
and otherwise
7
(y) by the Company. For purposes of any computation under this
paragraph (h), the number of shares of Common Stock outstanding at
any given time shall not include shares owned or held by or for
the account of the Company or its subsidiaries.
(4) In the event that, at any time as a result of the
provisions of this paragraph (h), the holder of this Warrant upon
subsequent exercise shall become entitled to receive any shares of
capital stock or other securities of the Company other than Common
Stock, the number of such other shares so receivable upon exercise
of this Warrant shall thereafter be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions contained herein.
(5) Upon each adjustment of the Exercise Price as a result
of the calculations made in paragraphs (h)(1) or (h)(2) hereof,
the number of shares for which this Warrant is exercisable
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Exercise Price, that number of shares of Common Stock obtained by
(i) multiplying the number of shares covered by this Warrant
immediately prior to this adjustment of the number of shares by
the Exercise Price in effect immediately prior to such adjustment
of the Exercise Price and (ii) dividing the product so obtained by
the Exercise Price in effect immediately after such adjustment of
the Exercise Price.
(6) The Company shall notify all Holders of the fixing of
a record date for the purpose of payment of a cash dividend to
holders of Common Stock as soon as reasonably practicable, but in
no event less than 20 days prior to any such record date.
(7) Not less than 10 nor more than 30 days prior to the
record date or effective date, as the case may be, of any action
which requires or might require an adjustment or readjustment
pursuant to this paragraph (h), the Company shall forthwith file
in the custody of the secretary or any assistant secretary at its
principal executive office and with its stock transfer agent or
its warrant agent, if any, an officers' certificate showing the
adjusted Exercise Price determined as herein provided, setting
forth in reasonable detail the facts requiring such adjustment and
the manner of computing such adjustment. Each such officers'
certificate shall be signed by the chairman, president or chief
financial officer of the Company and by the secretary or any
8
assistant secretary of the Company. Each such officers'
certificate shall be made available at all reasonable times for
inspection by the Holder or any holder of a Warrant executed and
delivered pursuant to paragraph (f) and the Company shall,
forthwith after each such adjustment, mail a copy, by first-class
mail, of such certificate to the Holder.
(8) The Holder shall, at its option, be entitled to
receive, in lieu of the adjustment pursuant to paragraph (h)(2)
otherwise required thereof, on the date of exercise of the
Warrants, the evidences of indebtedness, other securities, cash,
property or other assets which such Holder would have been
entitled to receive if it had exercised its Warrants for shares of
Common Stock immediately prior to the record date with respect to
such distribution. The Holder may exercise its option under this
paragraph (h)(8) by delivering to the Company a written notice of
such exercise within seven days of its receipt of the certificate
of adjustment required pursuant to paragraph (h)(7) to be
delivered by the Company in connection with such distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock for which this Warrant may have been exercised
immediately prior to such consolidation, merger, sale or transfer, assuming (i)
such holder of Common Stock is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) in the case of a consolidation,
merger, sale or transfer which includes an election as to the consideration to
be received by the holders, such holder of Common Stock failed to exercise its
rights of election, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock held immediately prior to such consolidation, merger, sale or
transfer by other than a
9
constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this paragraph (i) the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). Adjustments for events
subsequent to the effective date of such a consolidation, merger and sale of
assets shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. In any such event, effective provisions shall be
made in the certificate or articles of incorporation of the resulting or
surviving corporation, in any contract of sale, conveyance, lease or transfer,
or otherwise so that the provisions set forth herein for the protection of the
rights of the Holder shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the obligation to
deliver, upon exercise, such shares of stock, other securities, cash and
property. The provisions of this paragraph (i) shall similarly apply to
successive consolidations, mergers, sales, leases or transfers.
(j) NOTICES. Any notice, demand or delivery authorized by this Warrant
Certificate shall be in writing and shall be given to the Holder or the Company
as the case may be, at its address (or telecopier number) set forth below, or
such other address (or telecopier number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Thermadyne Holdings Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to the Holder: c/o DLJ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
10
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
of the Company, including, without limitation, the right to vote, to receive
dividends or other distributions or to receive any notice of meetings of
shareholders or any notice of any proceedings of the Company except as may be
specifically provided for herein.
(l) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND
ENFORCED IN ACCORDANCE WITH
SUCH LAWS.
(m) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Principal Holders and the Company,
or in the case of a waiver, by the party against whom the waiver is to be
effective. No failure or delay by either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
11
IN WITNESS WHEREOF, the Company has duly caused this Warrant
Certificate to be signed by its duly authorized officer and to be dated as of
December 22, 1999.
THERMADYNE HOLDINGS CORPORATION
By:
-------------------------------------
Name:
Title:
Acknowledged and Agreed:
[HOLDER]
By:
------------------------------------
Name:
Title:
WARRANT EXERCISE NOTICE
To: Thermadyne Holding Corporation
The undersigned hereby notifies you of its intention to exercise the
Warrant to purchase shares of Common Stock, par value $.01 per share, of
Thermadyne Holdings Corporation. The undersigned intends to exercise the Warrant
to purchase ___________ shares (the "Shares") at $______ per Share (the Exercise
Price currently in effect pursuant to the Warrant). The undersigned intends to
pay the aggregate Exercise Price for the Shares by __________ [specify any
method permitted by paragraph (b) of the Warrant].
Date:
-------------
---------------------------------------
(Signature of Owner)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
WARRANT ASSIGNMENT FORM
Dated ___________ ___, _____
FOR VALUE RECEIVED, _______________________ hereby sells,
assigns and transfers unto_____________________________(the "Assignee"),
(please type or print in block letters)
________________________________________________________________________________
(insert address)
its right to purchase up to ______ shares of Common Stock represented by this
Warrant and does hereby irrevocably constitute and appoint
_______________________ Attorney, to transfer the same on the books of the
Company, with full power of substitution in the premises.
Signature:
------------------------------