-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Rmfoyy+vS/AZoz51zZdLTcrwvT77R7MChKUdXoCDI2xTFI45nlxhhcdoQ3EAHwLi vnGLYVgM+APqQkKEWzd+3A== 0000919574-98-000195.txt : 19980217 0000919574-98-000195.hdr.sgml : 19980217 ACCESSION NUMBER: 0000919574-98-000195 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19980212 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: THERMADYNE HOLDINGS CORP /DE CENTRAL INDEX KEY: 0000850660 STANDARD INDUSTRIAL CLASSIFICATION: MACHINE TOOLS, METAL CUTTING TYPES [3541] IRS NUMBER: 742482571 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-43449 FILM NUMBER: 98535521 BUSINESS ADDRESS: STREET 1: 101 S HANLEY ROAD CITY: ST LOUIS STATE: MO ZIP: 63105 BUSINESS PHONE: 3147215573 MAIL ADDRESS: STREET 1: 101 SOUTH HANLEY RD STREET 2: SUITE 300 CITY: ST LOUIS STATE: MO ZIP: 63105 FORMER COMPANY: FORMER CONFORMED NAME: TD II DATE OF NAME CHANGE: 19940131 FORMER COMPANY: FORMER CONFORMED NAME: THERMADYNE HOLDINGS CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MAGTEN ASSET MANAGEMENT CORP CENTRAL INDEX KEY: 0000898345 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 132925888 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 35 EAST 21ST STREET CITY: NEW YORK STATE: NY ZIP: 10010 BUSINESS PHONE: 2125296612 MAIL ADDRESS: STREET 2: 35 EAST 21ST STREET CITY: NEW YORK STATE: NY ZIP: 10010 SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Amendment No.: 2 Name of Issuer: Thermadyne Holdings Corporation Title of Class of Securities: Common Stock, $.01 par value CUSIP Number: 883435109 (Name, Address and Telephone Number of Person Authorized To Receive Notices and Communications) Felix Kozodoy, Magten Asset Management Corp., 35 E. 21st St., New York, New York 10010 (Date of Event which Requires Filing of this Statement) January 20, 1998 If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No.: 883435109 1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person Magten Asset Management Corp. 2. Check the Appropriate Box if a Member of a Group a. b. X 3. SEC Use Only 4. Source of Funds O 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Delaware Number of Shares Beneficially Owned by Each Reporting Person With: 7. Sole Voting Power: -0- 8. Shared Voting Power: 2,998,773 9. Sole Dispositive Power: -0- 10. Shared Dispositive Power: 3,517,773 11. Aggregate Amount Beneficially Owned by Each Reporting Person 3,517,773 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares 2 13. Percent of Class Represented by Amount in Row (11) 31.68% 14. Type of Reporting Person CO 3 CUSIP No.: 883435109 1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person Talton R. Embry 2. Check the Appropriate Box if a Member of a Group a. b. X 3. SEC Use Only 4. Source of Funds O 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization United States Number of Shares Beneficially Owned by Each Reporting Person With: 7. Sole Voting Power: 60,771 8. Shared Voting Power: 2,998,773 9. Sole Dispositive Power: 60,771 10. Shared Dispositive Power: 3,517,773 11. Aggregate Amount Beneficially Owned by Each Reporting Person 3,578,544 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares 4 13. Percent of Class Represented by Amount in Row (11) 32.23% 14. Type of Reporting Person IN 5 The Schedule 13D was initially filed on July 25, 1996 (collectively, with all amendments thereto, the "Schedule 13D") by (i) Magten Asset Management Corp., a Delaware corporation ("Magten"), with respect to the shares of Common Stock beneficially owned by investment advisory clients of Magten, and (ii) Talton R. Embry ("Embry"; together with Magten, the "Filing Persons"). The Schedule 13D is hereby amended by this Amendment No. 2 as follows: Item 5. Interest in Securities of the Issuer. Item 5 as reported on Schedule 13D is hereby amended and restated in its entirety as follows: (a) Magten has beneficial ownership of an aggregate 3,517,773 shares of Common Stock of the Company, constituting approximately 31.68% of the 11,103,966 shares of Common Stock reported by the Company as outstanding as of October 29, 1997. All of these shares of Common Stock are beneficially owned by investment advisory clients of Magten (collectively, the "Investment Advisory Shares"). Magten has shared voting power (with its investment advisory clients and Embry) with respect to 2,998,773 of the shares of Common Stock owned by these clients and shared dispositive power (with its investment advisory clients and Embry) with respect to all 3,517,773 shares of Common Stock owned by these clients. Magten may be deemed to be the beneficial owner of the Investment Advisory Shares. Pursuant to Rule 13d-4 promulgated under the Securities Exchange Act of 1934, Magten hereby declares that the filing of this Schedule 13D shall not be construed as an admission that it is the beneficial owner of the Investment Advisory Shares. (b) Embry, as sole stockholder and a Managing Director of Magten, may be deemed to beneficially own all the shares of Common Stock beneficially owned by Magten, as described in Item 5(a) above. In addition, Embry directly owns 800 shares of Common Stock. Embry has sole voting and dispositive power with respect to these 800 shares of Common Stock. Embry, as trustee of four pension trusts for the benefit of current and former employees of Magten including himself (the "Pension Trusts"), also has sole voting and 6 dispositive power with respect to 56,640 shares of Common Stock owned by such trusts (collectively, the "Pension Trust Shares"). Embry, has sole voting and investment power with respect to 2,216 shares of Common Stock held by his minor children and with respect to 850 shares of Common Stock held by his wife (collectively, the "Family Shares"). Embry, as trustee for a trust for the benefit of a family members (the "Family Trust"), also has sole voting and dispositive power with respect to 265 shares owned by such trust (the "Family Trust Shares"). The shares described in Item 5(a) as beneficially owned by Magten with respect to which Embry may be deemed a beneficial owner, together with the additional shares described in this Item 5(b) with respect to which Embry may also be deemed a beneficial owner, aggregate 3,578,544 shares of Common Stock and constitute approximately 32.23% of the outstanding shares of Common Stock of the Company. Pursuant to Rule 13d-4, Embry hereby declares that the filing of this Schedule 13D shall not be construed as an admission that he is the beneficial owner of the Investment Advisory Shares, the Pension Trust Shares (to the extent such shares exceed his and his wife's pro rata interest as beneficiaries of such trusts), the Family Shares or the Family Trust Shares. (c) Information with respect to all transactions in Common Stock effected by the Filing Persons since the previous filing of Schedule 13D is set forth in Schedule A to this Schedule 13D and is incorporated by reference herein. (d) The beneficial owners of the Investment Advisory Shares have the right to receive and the power to direct the receipt of dividends from, or the proceeds from the sale of such shares. The following investment advisory clients of Magten have such an interest with respect to more than five percent of the shares of Common Stock: General Motors Employees Domestic Group Pension Trust and Bankers Trust as Trustee for the Hughes Master Retirement Trust. The beneficiaries of the Pension Trusts, the Family Trusts, Embry's wife and Embry's minor children have the right to receive dividends from or proceeds from the sale of the Pension Trust Shares, the Family Trust Shares, and the Family Shares, respectively. 7 (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Item 6 as reported on Schedule 13D is hereby amended and supplemented by the addition of the following paragraph: As of January 20, 1998 Magten Asset Management Corp., for itself and on behalf of certain of its investment advisory clients, and one of the pension trusts to which Magten provides investment advice (collectively, the "Parties"), entered into a voting agreement with Mercury Acquisition Corporation ("Mercury") and the Company (the "Voting Agreement") pursuant to which the Parties agreed, among other things, to vote 3,563,573 of the Shares that they or their affiliates are deemed to beneficially own in favor of a merger of Mercury into the Company pursuant to the terms of an Agreement and Plan of Merger dated as of January 20, 1998 between Mercury and the Company (the "Merger Agreement") and, so long as the Voting Agreement is in effect, not to vote their Shares in favor of the approval of any other merger, consolidation, sale of assets, reorganization, recapitalization or other similar extraordinary corporate transaction involving the Company. The Voting Agreement expires on the earlier of (a) the effective date of the merger between Mercury and the Company; (b) the date that is 90 days after (i) the termination of the Merger Agreement pursuant to certain provisions thereof relating to rights to terminate the Merger Agreement based on withdrawal of approval by the Board of Directors of the Company of the merger, failure of the Company's stockholders to approve the merger or for breach of representations, warranties or covenants and (ii) payment of all amounts payable to Mercury pursuant to the Merger Agreement; (c) the date of termination of the Merger Agreement for any other reason or (d) June 30, 1998. Item 7. Material to be Filed as Exhibits Exhibit A: Joint Filing agreement. Exhibits B: As described in Item 6. 8 Signatures The undersigned, after reasonable inquiry and to the best of their knowledge and belief, certify that the information set forth in this statement is true, complete and correct. MAGTEN ASSET MANAGEMENT CORP. By: /s/ Talton R. Embry _____________________________ Talton R. Embry, Chairman /s/ Talton R. Embry ____________________________ Talton R. Embry February 12, 1998 9 Exhibit A AGREEMENT The undersigned agree that this Amendment to Schedule 13D dated February 12, 1998 relating to the Common Stock of Thermadyne Holdings Corporation shall be filed on behalf of the undersigned. MAGTEN ASSET MANAGEMENT CORP. By: /s/ Talton R. Embry _____________________________ Talton R. Embry, Chairman By: /s/ Talton R. Embry ____________________________ Talton R. Embry February 12, 1998 10 01651001.AH7 Exhibit B VOTING AGREEMENT In consideration of Mercury Acquisition Corporation, a Delaware corporation ("MergerSub") and Thermadyne Holdings Corporation, a Delaware corporation (the "Company"), entering into on the date hereof an Agreement and Plan of Merger dated as of the date hereof (the "Merger Agreement") which provides, among other things, that MergerSub, upon the terms and subject to the conditions thereof, will be merged with and into the Company (the "Merger") and each outstanding share of common stock, $0.01 par value, of the Company (the "Company Common Stock") will be converted into the right to receive the Merger Consideration (as defined in the Merger Agreement) in accordance with the terms of such Agreement, each of the undersigned holders (each a "Stockholder") of shares of Company Common Stock agrees with MergerSub as follows: 1. During the period (the "Agreement Period") beginning on the date hereof and ending on the earlier of (i) the Effective Time (as defined in the Merger Agreement), (ii) the date that is 90 days after the termination of the Merger Agreement in accordance with Section 9.01(c) (in the case of a termination by MergerSub), (e), (f) or (g) thereof and payment in full of all amounts (if any) payable to MergerSub pursuant to Section 5.04 of the Merger Agreement, (iii) the date of termination of the Merger Agreement for any other reason and (iv) June 30, 1998, the Stockholder hereby agrees to vote the shares of Company Common Stock set forth opposite its name in Schedule A hereto (the "Schedule A Securities") to approve and adopt the Merger Agreement and the Merger (provided that the Stockholder shall not be required to vote in favor of the Merger Agreement or the Merger if the Merger Agreement has, without the consent of the Stockholder, been amended in any manner that is material and adverse to such Stockholder) and any actions directly and reasonably related thereto at any meeting or meetings of the stockholders of the Company, and at any adjournment thereof or pursuant to action by written consent, at or by which such Merger Agreement, or such other actions, are submitted for the consideration and vote of the stockholders of the Company so long as such meeting is held (including any adjournment thereof) or written consent adopted prior to the termination of the Agreement Period. 2. During the Agreement Period, each Stockholder hereby agrees that it will not vote any of the Stockholder's Schedule A Securities in favor of the approval of any other merger, consolidation, sale of assets, reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company or any matters related to or in connection therewith, or any corporate action relating to or the consummation of which would either frustrate the purposes of, or prevent or delay the consummation of, the transactions contemplated by the Merger Agreement. 3. From the date hereof until the termination hereof, each Stockholder will not, directly or indirectly, (i) take any action to solicit, initiate or encourage any Acquisition Proposal or (ii) engage in negotiations or discussions with, or disclose any nonpublic information relating to the Company or any Subsidiary or afford access to the properties, books or records of the Company or any Subsidiary to, or otherwise assist, facilitate or encourage, any Third Party that may be considering making, or has made, an Acquisition Proposal. Each Stockholder will promptly notify MergerSub after receipt of any Acquisition Proposal or any indication from any Third Party that it is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company or any Subsidiary or for access to the properties, books or records of the Company or any Subsidiary by any Third Party that may be considering making, or has made, an Acquisition Proposal and will keep MergerSub fully informed of the status and details of any such Acquisition Proposal, indication or request. 2 4. Each Stockholder agrees not to exercise any rights (including, without limitation, under Section 262 of the Delaware Law) to demand appraisal of any shares of Company Common Stock owned by the Stockholder. 5. Each Stockholder hereby represents and warrants to MergerSub that as of the date hereof: (a) such Stockholder (i) owns beneficially all of the shares of Company Common Stock set forth opposite the Stockholder's name in Schedule A hereto, (ii) has the full and unrestricted legal power, authority and right to enter into, execute and deliver this Voting Agreement without the consent or approval of any other person and (iii) has not entered into any voting agreement with or granted any person any proxy (revocable or irrevocable) with respect to such shares (other than this Voting Agreement). (b) This Voting Agreement is the valid and binding agreement of such Stockholder. (c) No investment banker, broker or finder is entitled to a commission or fee from such Stockholder or the Company in respect of this Agreement based upon any arrangement or agreement made by or on behalf of the Stockholder. 6. If any provision of this Voting Agreement shall be invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such 3 invalidity or unenforceability only, without in any way affecting the remaining provisions of this Voting Agreement. 7. This Voting Agreement may be executed in two or more counterparts each of which shall be an original with the same effect as if the signatures hereto and thereto were upon the same instrument. 8. The parties hereto agree that if for any reason any party hereto shall have failed to perform its obligations under this Voting Agreement, then the party seeking to enforce this Agreement against such non- performing party shall be entitled to specific performance and injunctive and other equitable relief, and the parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such-injunctive or other equitable relief. This provision is without prejudice to any other rights or remedies, whether at law or in equity, that any party hereto may have against any other party hereto for any failure to perform its obligations under this Voting Agreement. 9. This Voting Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. 10. The Stockholder will, upon request, execute and deliver any additional documents deemed by MergerSub to 4 be necessary or desirable to complete and effectuate the covenants contained herein. 11. This Agreement shall terminate upon the termination of the Agreement Period. 12. Each Stockholder agrees that if it sells, transfers, assigns, encumbers or otherwise disposes (each a "Transfer") of any Schedule A Securities (whether to an affiliate or otherwise), it shall require the transferee of such Schedule A Securities to execute and deliver to MergerSub and the Company a voting agreement identical in form to this Voting Agreement except for the identity of such Stockholder prior to or concurrent with the consummation of such Transfer. MergerSub and the Company understand and acknowledge that, subject to the preceding sentence, such Stockholder is free to Transfer any Schedule A Securities at such times and in such manner as it deems appropriate. 13. MergerSub and the Company understand and agree that this Agreement pertains only to Stockholder and not to any of its affiliates, if any, or adviser. 14. MergerSub and the Company severally and not jointly represent and warrant to each Stockholder that there is no agreement, understanding or commitment, written or oral, to pay any consideration directly or indirectly in connection with the Merger or otherwise to or for the 5 benefit of any holder of Company Common Stock or options thereon other than as set forth in the Merger Agreement (except, in the case of directors, employees, agents, customers, suppliers or contractors of the Company who are also holders, such consideration as is payable by the Company in the ordinary course of business and except for amounts payable to officers, directors or employees in connection with or pursuant to any options, or option, stock purchase, stock ownership or other employee benefit plans). All other voting agreements signed with existing shareholders prior to or concurrently herewith are substantially identical to this Agreement. Neither MergerSub nor the Company will enter into any agreement with any other stockholder having a purpose or effect substantially similar to that of this Agreement on financial terms (with respect to such other stockholder) more favorable than the terms of this Agreement. 15. MergerSub agrees that it will pay upon request the reasonable fees and expenses (including fees and expenses of counsel for the Stockholders) of all Stockholders incurred in connection with the Voting Agreement or the Merger in an amount not to exceed $5,000, or in the event the Stockholders become involved in litigation, $15,000 in the aggregate. 6 IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of this 20th day of January, 1998. MERCURY ACQUISITION CORPORATION By /s/ Peter T. Grauer Peter T. Grauer President THERMADYNE HOLDINGS CORPORATION By /s/ Randall E. Curran Randall E. Curran Chairman of the Board GENERAL MOTORS EMPLOYEES DOMESTIC GROUP PENSION TRUST By: Mellon Bank, N.A., solely in its capacity as Trustee for General Motors Employees Domestic Group Pension Trust as directed by Magten Asset Management Corp., and not in its individual capacity. By /s/ Bernadette Rist Bernadette Rist Authorized Signatory MAGTEN ASSET MANAGEMENT CORP. By /s/ Talton R. Embry Name: Title: 7 CITY OF LOS ANGELES FIRE AND POLICE PENSION SYSTEMS HUGHES RETIREMENT PLANS TRUST NAVY EXCHANGE SERVICE COMMAND RETIREMENT TRUST WESTERN UNION TELEGRAPH COMPANY PENSION PLAN By: Magten Asset Management Corp., as Attorney-in-Fact By /s/ Talton R. Embry Name: Title: 8 SCHEDULE A Shares of Company Stockholder Common Stock Magten Asset Management Corp. 152,847 General Motors Employees Domestic Group Pension Trust 1,701,125 City of Los Angeles Fire and Police Pension Systems 519,000 Hughes Retirement Plans Trust 640,000 Navy Exchange Service Command Retirement Trust 300,000 Western Union Telegraph Company Pension Plan 250,601 3,563,573 9 01651001.AH7 -----END PRIVACY-ENHANCED MESSAGE-----