-----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, TwApZ3p2zJzIr18R9AImrpggtRL8xINAa23dv/KBi584Q3wIgPbD3L7XbPizxKU8 uEB/+cZcJtMGycNF1lTX1Q== 0000950103-98-000651.txt : 19980701 0000950103-98-000651.hdr.sgml : 19980701 ACCESSION NUMBER: 0000950103-98-000651 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980630 SROS: NONE 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: 98657888 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: DONALDSON LUFKIN & JENRETTE INC /NY/ CENTRAL INDEX KEY: 0000029646 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 131898818 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 277 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10172 BUSINESS PHONE: 2128923000 MAIL ADDRESS: STREET 1: 277 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10172 FORMER COMPANY: FORMER CONFORMED NAME: DONALDSON LUFKIN & JENRETTE INC /NY/ DATE OF NAME CHANGE: 19960319 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. 1) THERMADYNE HOLDINGS CORPORATION (Name of Issuer) Common Stock $0.01 PAR VALUE (Title of Class of Securities) -------------- 883435109 (CUSIP Number) Donaldson, Lufkin & Jenrette, Inc. (Name of Persons Filing Statement) George R. Bason, Jr. Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Tel. No.: 212 450 4340 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 22, 1998 (Date of Event which Requires Filing of this Statement) -------------- 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 statement because of Rule 13d-1(b)(3) or (4), check the following: [ ] ============================================================================== SCHEDULE 13D CUSIP No. 883435109 Page 2 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking Partners II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 1,643,283 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 3 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking Partners II-A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 65,443 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 4 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Millennium Partners - A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 5,182 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 5 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Millennium Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 26,570 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 6 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ EAB Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 7,378 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 7 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Offshore Partners II, C.V. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Netherlands Antilles 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 80,808 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 8 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking II, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 1,828,664 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* OO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 9 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking II, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 1,828,664 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 10 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 96,074 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 11 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners- A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 35,679 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 12 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Associates LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON WITH 2,608,696 9 SOLE DISPOSITIVE POWER 131,753 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 13 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON WITH 2,608,696 9 SOLE DISPOSITIVE POWER 131,753 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 14 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ First ESC, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 3,162 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 15 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ ESC II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 309,881 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 16 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ LBO Plans Management Corporation 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON WITH 2,608,696 9 SOLE DISPOSITIVE POWER 313,043 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 17 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJMB Funding II, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 291,758 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 18 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Capital Investors, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 WITH 9 SOLE DISPOSITIVE POWER 2,565,218 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 19 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON UK Investment Plan 1997 Partners 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 43,478 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 20 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON UK Investment Plan 1997, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 43,478 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 -- See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% -- See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 21 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Donaldson Lufkin & Jenrette, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 2,608,696 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* HC, CO *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 22 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The Equitable Companies Incorporated 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER -0- 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 2,608,696 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 2,608,696 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO, HC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 23 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* HC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 24 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Finaxa 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* HC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 25 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Assurances I.A.R.D. Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 26 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Assurances Vie Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 27 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Courtage Assurance Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 28 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Alpha Assurances Vie Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 29 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Claude Bebear, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON WITH See Item 5 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 30 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Patrice Garnier, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D CUSIP No. 883435109 Page 31 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Henri de Clermont - Tonnerre, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,608,696 - See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 80.6% - See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! Item 1. Security and Issuer. The class of equity securities to which this statement relates is the common stock, $0.01 par value per share (the "Shares"), of Thermadyne Holdings Corporation, a Delaware corporation ("Thermadyne"). The principal executive offices of Thermadyne are located at 101 S. Hanley Rd. Ste. 300, St. Louis, MO 63105. Item 2. Identity and Background. This Schedule 13D is being filed jointly on behalf of the following persons (collectively, the "Reporting Persons"):(1) DLJ Merchant Banking Partners II, L.P., a Delaware corporation ("Partners II"); (2) DLJ Merchant Banking Partners II-A, L.P., a Delaware limited partnership ("Partners II-A"); (3) DLJ Millennium Partners, L.P., a Delaware limited partnership ("Millennium"); (4) DLJ Millennium Partners-A, L.P., a Delaware limited partnership ("Millennium-A"); (5) DLJ Offshore Partners II, C.V., a Netherlands Antilles limited partnership ("Offshore II"); (6) DLJ EAB Partners, L.P., a Delaware limited partnership ("EAB"); (7) DLJ Merchant Banking II, LLC, a Delaware limited liability company ("MBII LLC"); (8) DLJ Merchant Banking II, Inc., a Delaware corporation ("MBII INC"); (9) DLJ Diversified Partners, L.P., a Delaware limited partnership ("Diversified"); (10) DLJ Diversified Partners-A, L.P., a Delaware limited partnership ("Diversified-A"); (11) DLJ Diversified Associates, L.P., a Delaware limited partnership ("Diversified Associates"); (12) DLJ Diversified Partners, Inc., a Delaware corporation ("Diversified Partners"); (13) DLJ First ESC L.P., a Delaware limited partnership ("ESC"); (14) DLJ ESC II L.P., a Delaware limited partnership ("ESC II"); (15) DLJ LBO Plans Management Corporation, a Delaware corporation ("LBO"); (16) DLJMB Funding II, Inc., a Delaware corporation ("Funding II"); (17) DLJ Capital Investors, Inc., a Delaware corporation ("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general partnership ("1997 Partners"); (19) UK Investment Plan 1997, Inc. ("Plan 1997" and together with the previously listed entities, the "DLJ Entities"); (20) Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (21) The Equitable Companies Incorporated, a Delaware corporation ("EQ"); (22) AXA, a societe anonyme organized under the laws of France; (23) Finaxa, a societe anonyme organized under the laws of France; (24) AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized under the laws of France; (25) AXA Assurances Vie Mutuelle, a mutual insurance company organized under the laws of France; (26) AXA Courtage Assurance Mutuelle, a mutual insurance company organized under the laws of France; (27) Alpha Assurances Vie Mutuelle, a mutual insurance company organized under the laws of France; and (28) Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of a voting trust (the "AXA Voting Trust") established pursuant to a Voting Trust Agreement by and among AXA and the AXA Voting Trustees dated as of May 12, 1992, as amended January 22, 1997. Partners II, Partners II-A, Millennium, Millennium-A, Offshore II, EAB, Diversified, Diversified-A, Funding II, 1997 Partners, ESC, and ESC II are collectively referred to as the "DLJ Funds". Partners II, Partners II-A, Millennium and Millennium-A are Delaware limited partnerships which make investments for long term appreciation. MBII LLC is the Associate General Partner of Partners II and Partners II-A. MBII INC is the Managing General Partner of Partners II and Partners II-A. MBII LLC and MBII INC make all of the investment decisions on behalf of Partners II and Partners II-A. EAB is Delaware limited partnership which makes investments for long term appreciation. MBII LLC is the Associate General Partner of EAB and LBO is the Managing General Partner of EAB. MBII LLC and LBO make all of the investment decisions on behalf of EAB. Offshore II is a Netherlands Antilles limited partnership which makes investments for long term appreciation. MBII LLC is the Associate General Partner of Offshore II. MBII INC is the Advisory General Partner of Offshore II. MBII LLC and MBII INC make all of the investment decisions on behalf of Offshore II. MBII LLC is a Delaware limited liability company and is a registered investment adviser. As the Associate General Partner of Partners II, Partners II-A, Millennium, Millennium-A, EAB and Offshore II, MBII LLC, in conjunction with MBII INC, participates in investment decisions made on behalf of these entities. MBII INC is the managing member of MBII LLC. MBII INC is a Delaware corporation and is a registered investment adviser. As the Managing General Partner of Partners II, Partners II-A, Millennium and Millennium-A, and the Advisory General Partner Offshore II, MBII INC is responsible for the day to day management of these entities and, in conjunction with MBII LLC, participates in investment decisions made on behalf of these entities. MBII INC is a wholly owned subsidiary of DLJCI. Diversified and Diversified-A are Delaware limited partnerships which make investments for long term appreciation. A portion of Diversified and Diversified-A's capital commitments are dedicated to making side-by-side investments with Partners II and Partners II-A, respectively. Diversified Associates is the Associate General Partner of Diversified and Diversified-A and Diversified Partners is the Managing General Partner of Diversified and Diversified-A. Diversified Partners is responsible for the day to day management of Diversified and Diversified-A. Diversified Associates is a Delaware limited partnership and a registered investment adviser. As the Associate General Partner of Diversified and Diversified-A, Diversified Associates, in conjunction with Diversified Partners and subject to the terms of the Diversified Agreement, participates in the management of investments of Diversified. Diversified Partners is the general partner of Diversified Associates. Diversified Partners is a Delaware corporation and a registered investment adviser. As the Managing General Partner of Diversified and Diversified-A, Diversified Partners is responsible for the day to day management of Diversified and Diversified-A. In conjunction with Diversified Associates, Diversified Partners participates in the investment decisions made on behalf of Diversified and Diversified-A. Diversified Partners is a wholly owned subsidiary of DLJCI. ESC and ESC II are Delaware limited partnerships and "employee securities companies" as defined in the Investment Company Act of 1940, as amended. LBO, as the Managing General Partner of ESC and ESC II, makes all of the investment decisions on behalf of ESC and ESC II. LBO is a Delaware corporation and a registered investment adviser. LBO is a wholly owned subsidiary of DLJCI. As the Managing General Partner of EAB, ESC and ESC II, LBO is responsible for the day-to-day management of EAB, ESC and ESC II. Funding II is a Delaware corporation which makes investments for long term appreciation generally side-by-side with Partners II. Funding II is a wholly owned subsidiary of DLJCI. DLJCI is a Delaware corporation a holding company. DLJCI is a wholly owned subsidiary of DLJ. 1997 Partners is a Delaware general partnership which makes investments for long term appreciation generally side-by-side with Partners II. Plan 1997 and DLJ are each general partners of 1997 Partners. Plan 1997 is a Delaware corporation. Plan 1997 is a wholly owned subsidiary of DLJ. DLJ is a publicly held Delaware corporation. DLJ directly owns all of the capital stock of DLJCI and Plan 1997. DLJ, acting on its own behalf or through its subsidiaries, is a registered broker/dealer and registered investment adviser engaged in investment banking, institutional trading and research, investment management and financial and correspondent brokerage services. EQ is a Delaware corporation and is a holding company. As of March 1, 1998, EQ owns, directly or indirectly, 73.2% of DLJ. AXA is a societe anonyme organized under the laws of France and a holding company for an international group of insurance and related financial services companies. As of March 1, 1998, approximately 59% of the outstanding common stock of EQ was beneficially owned by AXA. For insurance regulatory purposes, to insure that certain indirect minority shareholders of AXA will not be able to exercise control over EQ and certain of its insurance subsidiaries, the voting shares of EQ capital stock beneficially owned by AXA and its subsidiaries have been deposited into the AXA Voting Trust. For additional information regarding the AXA Voting Trust, reference is made to the Schedule 13D filed by AXA with respect to EQ. As of March 1, 1998, AXA directly owned 0.15% of DLJ. Finaxa is a societe anonyme organized under the laws of France and is a holding company. As of March 1, 1998, Finaxa controlled directly and indirectly approximately 21.4% of the issued ordinary shares (representing approximately 30.2% of the voting power) of AXA. Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, AXA Courtage Assurance Mutuelle, and Alpha Assurances Vie Mutuelle (collectively, the "Mutuelles AXA") is a mutual insurance company organized under the laws of France. Each of the Mutuelles AXA is owned by its policy holders. As of March 1, 1998, the Mutuelles AXA, as a group, control approximately 62.0% of the issued shares (representing approximately 74.0% of the voting power) of Finaxa. Including the ordinary shares owned by Finaxa, on March 1, 1998, the Mutuelles AXA directly or indirectly controlled 24.7% of the issued ordinary shares (representing 34.8% of the voting power) of AXA. Acting as a group, the Mutuelles AXA control AXA and Finaxa. Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA Voting Trustees, exercise all voting rights with respect to the shares of EQ capital stock beneficially owned by AXA and its subsidiaries that have been deposited in the AXA Voting Trust. The business address, citizenship and present principal occupation of each of the AXA Voting Trustees are set forth on Schedule I attached hereto. The address of the principal business and office of each of the DLJ Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of the principal business and principal office of Equitable is 1290 Avenue of the Americas, New York, New York 10104. The address of the principal business and principal office of AXA and the AXA Voting Trustees is 9 Place Vendome, 75001 Paris, France. The address of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de Chateaudun, 75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue Louis le Grand, 75002 Paris, France; and of Alpha Assurances Vie Mutuelle is Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France. The name, business address, citizenship, present principal occupation or employment and the name and business address of any corporation or organization in which each such employment is conducted, of each executive officer or member, as applicable, of the Board of Directors, Supervisory Board, or the Conseil d'Administration (French analogue of a Board of Directors) of EQ, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules A through O, respectively, attached hereto. During the past five (5) years, neither any of the Reporting Persons nor, to the best knowledge of any of the Reporting Persons, any of the other persons listed on Schedules A through O attached hereto, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to United States federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. The general and limited partners of the DLJ Funds contributed $90,000,012 for 2,608,696 Shares. Item 4. Purpose of Transaction. On January 21, 1998, Thermadyne and Mercury Acquisition Corporation, a Delaware corporation that, as of May 22, 1998, was wholly-owned by certain of the DLJ Funds ("Mercury"), entered into an Agreement and Plan of Merger (as amended, the "Merger Agreement," attached to the Schedule 13D filed on March 12, 1998 and made a part thereof as Exhibit 3). The Merger Agreement provides, among other things, for the merger of Mercury with and into Thermadyne (the "Merger"), with Thermadyne as the surviving corporation (the "Surviving Corporation"). The Merger contemplates that approximately 95.7% of the issued and outstanding Shares of Thermadyne will be converted into cash and that approximately 4.3% of such Shares will be retained by existing stockholders. The tramsactions contemplated by the Merger Agreement were approved by the stockholders of Thermadyne and were consummated, in each case, on May 22, 1998 (the "Effective Time"). Item 5. Interest in Securities of the Issuer. Pursuant to the terms of the Merger Agreement, on May 22, 1998 (the "Closing Date"), Thremadyne filed a Certificate of Merger with the Secretary of the State of Delaware, and the Merger was effective as of the filing of such certificate. In connection therewith, immediately prior to the Effective Time, Mercury entered into a Subscription Agreement (the "Subscription Agreement") (attached hereto and made a part hereof as Exhibit 5) with the DLJ Funds, dated May 22, 1998, pursuant to which the DLJ Funds purchased shares of common stock and preferred stock of Mercury on the terms set forth therein. At the Effective Time, each outstanding share of Mercury common stock was converted into one Share. Immediately following the Effective Time, the DLJ Funds' approximate ownership of the outstanding common stock of the Surviving Corporation was 80.6%. In addition, Thermadyne, the DLJ Funds and certain members of Thermadyne management (the "Management Shareholders"), have entered into an Investors' Agreement dated as of May 22, 1998 (the "Investors' Agreement") (attached hereto and made part hereof as Exhibit 6). Pursuant to the Investors' Agreement, the Board of Directors will comprise 7 members, 5 of whom will be nominated by Partners II, one of whom will be Randall E. Curran, and one of whom will be James H. Tate. Each of the parties to the Investors' Agreement has agreed to vote its shares of Thermadyne in favor of the persons so nominated, provided that the Management Shareholders will not be required to vote for Partners II's nominees if the number of Shares held by the DLJ Funds is less than 10% of their Initial Ownership (defined as the number of Shares held by the DLJ Funds as of the date of the Investors' Agreement). The Management Shareholders may sell or otherwise transfer their shares of Thermadyne only as follows: (i) to a Permitted Transferee; (ii) pursuant to the Tag-along Rights described below; (iii) pursuant to the Drag-along Rights described below; (iv) in a public offering; provided that (a) no Management Shareholder may sell any shares of Thermadyne in the first public offering of shares of Thermadyne after the date of the Investors' Agreement (the "FPO"), (b) in each public offering following the FPO, each Management Shareholder may sell no more than his or her Pro Rata Portion (defined as the number of shares of Thermadyne the Shareholder in question holds (either non-Purchased Shares or Purchased Shares, as the case may be) multiplied by a fraction the numerator of which is the number of Shares to be sold by the DLJ Funds and their Permitted Transferees in the public offering in question and the denominator of which is the total number of Shares held in aggregate by the DLJ Funds and their Permitted Transferees prior to such public offering) of non-Purchased Shares and (d) notwithstanding any of the above, each Management Shareholder may sell a number of the Shares purchased by such Management Shareholder on the Closing Date ("Purchased Shares") equal to his or her Pro Rata Portion in each public offering, including the FPO (the limitations in (a), (b), (c) and (d) are referred to collectively as the "Public Offering Limitations"); (v) 180 days (or such lesser period as is agreed by the underwriter of the public offering) after any public offering, pursuant to the exemption from registration provided under Rule 144 under the Securities Act of 1933 (the "Securities Act"), provided that until the earlier to occur of (a) the second anniversary of the IPO and (b) the fifth anniversary of the Closing Date (the "Restriction Termination Date") such sales cannot reduce the Management Shareholder's ownership to (or occur at a time when such Shareholder's ownership is otherwise) below the greater of (x) 50% of his or her Initial Ownership and (y) that percentage of his or her Initial Ownership as equals the percentage of the Aggregate Ownership of the DLJ Funds as a percentage of their Inital Ownership; and (vi) after the Restriction Termination Date, pursuant to a sale to a third party for cash, provided that the amount sold in any 12-month period may not exceed 20% of the greater of (x) the Management Shareholder's holdings at the beginning of the 12-month period and (y) such Management Shareholder's Aggregate Ownership as of the date of the Investors'Agreement. The above transfer restrictions applicable to the Management Shareholders will terminate upon the earlier to occur of (i) the fifth anniversary of the Closing Date and (ii) a change of control of Thermadyne. The Investors' Agreement provides that if the DLJ Funds propose to sell Shares, the Management Shareholders will have the right to participate in the sale ("Tag-along Rights"), provided that no such rights shall apply (i) to sales of less than 10%, in the aggregate, of the outstanding Shares, (ii) to sales to Permitted Transferees of the DLJ Funds, or (iii) to public offerings. If Tag-along Rights apply, the DLJ Funds will inform the Management Shareholders (the "Tag Shareholders") of the terms and conditions of the proposed sale and offer each Tag Shareholder the opportunity to participate. If the number of Shares that the DLJ Funds and the Tag Shareholders propose to sell exceeds the number that can be sold on the terms and conditions proposed by the buyer, the DLJ Funds and each Tag Shareholder who has exercised Tag-along Rights will be entitled to sell up to his or her Tag Along Portion. Tag Along Portion shall mean the number of Shares owned by such Tag Shareholder (on a fully diluted basis) (and in the case of the DLJ Funds, owned by the DLJ Funds on a fully diluted basis) multiplied by a fraction, the numerator of which shall be the number of Shares proposed to be sold by the DLJ Funds and the denominator of which shall be the total number of Shares (on a fully diluted basis) held by parties to the Investors' Agreement. To the extent any Tag Shareholder sells less than such Tag Shareholder's Tag Along Portion, the DLJ Funds shall be entitled to sell their own Shares in lieu of such Tag Shareholder. The DLJ Funds and the Tag Shareholders who have exercised Tag-along Rights may sell their Shares on substantially the same terms and conditions set forth in the notice (subject to an increase in the amount of consideration of up to 10%) within 120 days of the date all Tag-along Rights are waived, exercised or expire. The Investors' Agreement contemplates that if (i) the DLJ Funds propose to sell Shares constituting not less than 50% of their Initial Ownership in a bona fide third party sale, or (ii) the DLJMB Funds propose a sale in which the Shares to be sold by the DLJMB Funds and their permitted transferees constitute more than 50% of the outstanding Shares held by all such Shareholders, the DLJ Funds will be entitled to compel the Management Shareholders to participate in the sale ("Drag-along Rights") with respect to the Shares owned by each Management Shareholder which constitute the Drag-along Portion of the number of Shares that such person owns. Drag-along Portion shall mean as to any Management Shareholder the number of Shares such person owns (on a fully diluted basis) multiplied by a fraction the numerator of which is the number of Shares to be sold by the seller and proposed sellers and the denominator of which is the total number of Shares owned by the seller and proposed sellers. Shareholders have the right, under certain circumstances, to refuse to participate in such a sale; should any Shareholder refuse, the DLJ Funds may cause such Shareholder to sell its Drag-Along Portion to the DLJ Funds. The DLJ Funds have the right to request Thermadyne to register for sale their Shares, on six occasions, if the aggregate proceeds expected to be received from such sale exceeds $50,000,000 (in the case of the First Public Offering) or $10,000,000 in all other cases. Each party to the Investors' Agreement has the right, subject to certain limitations, to request Thermadyne to include its Shares in any registration under taken by Thermadyne. All requests for registration are subject to certain other customary terms and conditions. While each of the DLJ Entities may be deemed to beneficially own the Shares held by the DLJ Funds and the Management Shareholders (collectively, the "Investors' Shares"), each of the DLJ Entities disclaims beneficial ownership of those Investors' Shares held by the Management Shareholders. As the sole stockholder of DLJCI and UKIP 1997 INC, DLJ may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that may be deemed to be owned beneficially by each of DLJCI and UKIP 1997 INC. Because of EQ's ownership of DLJ, EQ may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that may be deemed to be beneficially owned indirectly by DLJ. Each of DLJ and EQ disclaims beneficial ownership of the Investors' Shares. Because of AXA's ownership interest in EQ, and the AXA Voting Trustees' power to vote the EQ shares placed in the AXA Voting Trust, each of AXA and the AXA Voting Trustees may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that EQ may be deemed to beneficially own indirectly. Because of the direct and indirect ownership interest in AXA of Finaxa and the Mutuelles AXA, each of Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that AXA may be deemed to beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and the AXA Voting Trustees expressly disclaim beneficial ownership of any of the Investors' Shares. Subject to market conditions and other factors, the DLJ Funds or other affiliates of DLJ may acquire or dispose of shares of Thermadyne from time to time in future open-market, privately negotiated or other transactions, may enter into agreements with third parties relating to acquisitions of securities issued or to be issued by the Surviving Corporation, may enter into agreements with the management of Thernadyne relating to acquisitions of shares of the Surviving Corporation by members of management, issuances of options to management or their employment by the surviving corporation, or may effect other similar agreements or transactions. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. See response to Item 4. A copy of the Merger Agreement was attached as Exhibit 3 to the Schedule 13D filed by the Reporting Persons with the Securities and Exchange Commission on March 12, 1998 and is incorporated herein by reference. A copy of each of the Subscription Agreement, the Investors' Agreement, Amendment No. 1 to the Merger Agreement and Amendment No. 1 to the Voting Agreement with Magten Asset Management Corp. are attached hereto as Exhibits 5, 6, 7 and 8 are incorporated herein by reference. The summaries of the terms of the Merger Agreement, the Subscription Agreement and the Investors' Agreement set forth herein are qualified in their entirety by reference to Exhibits 3 and 7, 5 and 6, respectively. Except for the agreements described in the response to Item 4, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the persons enumerated in Item 2, and any other person, with respect to any securities of Thermadyne, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits. Exhibit 1: Joint filing agreement among the Reporting Persons (Previously filed with the Schedule 13D on March 12, 1998). Exhibit 2: Powers of Attorney (Previously filed with the Schedule 13D on March 12, 1998). Exhibit 3: Agreement and Plan of Merger dated as of January 20, 1998 between Thermadyne Holdings Corporation and Mercury Acquisition Corporation. (Previously filed with the Schedule 13D on March 12, 1998). Exhibit 4: Voting Agreements dated January 20, 1998 among Thermadyne Holdings Corporation, Mercury Acquisition Corporation and Magten Asset Management Corp. and among Thermadyne Holdings Corporation, Mercury Acquisition Corporation and Fidelity Capital & Income Fund. (Previously filed with the Schedule 13D on March 12, 1998). Exhibit 5: Subscription Agreement dated as of May 22, 1998 among Mercury Acquisition Corporation and the buyers named therein. Exhibit 6: Investors' Agreement dated as of May 22, 1998 among Thermadyne Holdings Corporation, the DLJ Funds and certain other persons named therein. Exhibit 7: Amendment No. 1 to the Agreement and Plan of Merger between Thermadyne Holdings Corporation and Mercury Acquisition Corporation. Exhibit 8: Amendment No. 1 to the Voting Agreement among Thermadyne Holdings Corporation, Mercury Acquisition Corporation and Magten Asset Management Corp. After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Merchant Banking Partners II, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Merchant Banking Partners II-A, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Millennium Partners, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Millennium Partners-A, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ EAB Partners, L.P. By DLJ LBO Plans Management Corporation as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Offshore Partners II, C.V. By DLJ Merchant Banking II, Inc., as Advisory General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Merchant Banking II, LLC By DLJ Merchant Banking II, Inc., as Managing Member By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Merchant Banking II, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Diversified Partners, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Diversified Partners-A, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Diversified Associates, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Diversified Partners, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ First ESC, L.P. By DLJ LBO Plans Management Corporation, as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ ESC II L.P. By DLJ LBO Plans Management Corporation, as Managing General Partner By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ LBO Plans Management Corporation By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJMB Funding II, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 DLJ Capital Investors, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 UK Investment Plan 1997 Partners By UK Investment Plan 1997, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 UK Investment Plan 1997, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 Donaldson, Lufkin & Jenrette, Inc. By: /s/ Claire M. Power --------------------------------- Name: Claire M. Power Title: Assistant Secretary After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 The Equitable Companies Incorporated By: /s/ Alvin H. Fenichel --------------------------------- Name: Alvin H. Fenichel Title: Senior Vice President and Controller After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: June 26, 1998 AXA Finaxa AXA Assurances I.A.R.D. Mutuelle AXA Assurances Vie Mutuelle AXA Courtage Assurance Mutuelle Alpha Assurances Vie Mutuelle Claude Bebear, as AXA Voting Trustee Patrice Garnier, as AXA Voting Trustee Henri de Clermont-Tonnerre, as AXA Voting Trustee Signed on behalf of each of the above By: /s/ Alvin H. Fenichel --------------------------------- Name: Alvin H. Fenichel Title: Attorney-in-fact Schedule A Executive Officers and Directors of Mercury Acquisition Corporation The names of the Directors and the names and titles of the Executive Officers of Mercury Acquisition Corporation ("Mercury") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Mercury at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Mercury and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Peter T. Grauer President and Treasurer; Managing Director, DLJ Merchant Banking II, Inc. * William F. Dawson, Jr. Vice President and Secretary; Senior Vice President, Donaldson, Lufkin & Jenrette Securities Corporation - ---------- * Director Schedule B Executive Officers and Directors of DLJ Merchant Banking II, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of MBII INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MBII INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Hamilton E. James Chairman; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Nicole S. Arnaboldi Managing Director * Thompson Dean Managing Director Carlos Garcia Managing Director * Peter T. Grauer Managing Director * David L. Jaffe Managing Director * Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer * Karl R. Wyss Managing Director - ---------- * Director Schedule C Executive Officers and Directors of DLJ Diversified Partners, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DP INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DP INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Hamilton E. James Chairman; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer; Managing Director and Chief Operating Officer, DLJ Merchant Banking II, Inc. * Marjorie S. White Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ---------- * Director Schedule D Executive Officers and Directors of DLJMB Funding, II, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Funding II at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Funding II and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Charles J. Hendrickson Treasurer; Senior Vice President and Treasurer, Donaldson, Lufkin & Jenrette, Inc. Marjorie S. White Secretary; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ---------- * Director Schedule E Executive Officers and Directors of DLJ LBO Plans Management Corporation The names of the Directors and the names and titles of the Executive Officers of DLJ LBO Plans Management Corporation ("LBO") and their business addresses and principal occupations are set forth below. Each Director's or Executive Officer's business address is that of LBO at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to LBO and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Vincent DeGiaimo Vice President; Senior Vice President and Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Vice President and Secretary; Vice President, Donaldson, Lufkin & Jenrette, Inc. - ---------- * Director Schedule F Executive Officers and Directors of DLJ Capital Investors, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DLJCI at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DLJCI and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * John S. Chalsty Chairman; Chairman and Chief Executive Officer, Donaldson, Lufkin & Jenrette, Inc. * Hamilton E. James Chief Executive Officer; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Joe L. Roby Chief Operating Officer; President and Chief Operating Officer, Donaldson, Lufkin & Jenrette, Inc. * Anthony F. Daddino Executive Vice President and Chief Financial Officer; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ---------- * Director Schedule G Executive Officers and Directors of UK Investment Plan 1997, Inc. The names of the Directors and the names and titles of the Executive Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of UKIP 1997 INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to UKIP 1997 INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Vice President, Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. * Stuart S. Flamberg Director of Taxes; Senior Vice President and Director of Taxes, Donaldson, Lufkin & Jenrette, Inc. * Mark A. Competiello Tax Manager; Senior Vice President and Tax Manager, Donaldson, Lufkin & Jenrette, Inc. - ---------- * Director Schedule H Executive Officers and Directors of Donaldson, Lufkin & Jenrette, Inc. The names of the Directors and the names and titles of the Executive Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DLJ at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DLJ and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * John S. Chalsty Chairman * Joe L. Roby President and Chief Executive Officer * Henri de Castries (1) Senior Executive Vice President AXA Financial Services and Life Insurance 23, avenue Matignon Activities (U.S. & U.K.), AXA 75008 Paris, France * Denis Duverne (1) Senior Vice President - International AXA Life, AXA 23, avenue Matignon 75008 Paris, France * Louis Harris Chairman and Chief Executive Officer, LH Research LH Research (research) 152 East 38th Street New York, New York 10016-2605 * Michael Hegarty President and Chief Operating Officer 1290 Avenue of the Americas The Equitable Life Assurance 16th Floor Society of the United States New York, New York 10104 * Henri G. Hottinguer (2) Chairman and Chief Executive Officer, Banque Hottinguer Banque Hottinguer (banking) 38, rue de Provence 75009 Paris, France * W. Edwin Jarmain (3) President, Jarmain Group Inc. (private Jarmain Group Inc. investment holding company) Suite 2525, Box 36 121 King Street, West Toronto, Ontario M5H 3T9 Canada * Francis Jungers Retired 19880 NW Nestucca Drive Portland, Oregon 97229 * Edward D. Miller President and Chief Executive Officer, 1290 Avenue of the Americas The Equitable Companies Incorporated New York, New York 10104 * W. J. Sanders, III Chairman and Chief Executive Officer, Advanced Micro Devices, Inc. Advanced Micro Devices 901 Thompson Place Sunnyvale, CA 94086 * Stanley B. Tulin Executive Vice President and Chief Financial Officer, The Equitable Companies Incorporated * John C. West Retired Bothea, Jordan & Griffin 23B Shelter Cove Hilton Head Island, SC 29928 * Hamilton E. James Managing Director * Richard S. Pechter Managing Director * Theodore P. Shen Managing Director * Anthony F. Daddino Executive Vice President and Chief Financial Officer - ---------- * Director (1) Citizen of the Republic of France (2) Citizen of Canada (3) Citizen of Switzerland Schedule I Executive Officers and Directors of The Equitable Companies Incorporated The names of the Directors and the names and titles of the Executive Officers of The Equitable Companies Incorporated ("EQ") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of EQ at 1290 Avenue of the Americas, New York, New York 10104. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to EQ and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear (1) Chairman of the Executive Board, AXA AXA 23, avenue Matignon 75008 Paris, France * John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette, Donaldson, Lufkin & Jenrette, Inc. Inc. 277 Park Avenue New York, NY 10172 * Francoise Colloc'h (1) Senior Executive Vice President, Group AXA Human Resources and Communications, AXA 23, avenue Matignon 75008 Paris, France * Henri de Castries (1) Chairman of the Board; Senior Executive AXA Vice President, Financial Services and 23, avenue Matignon Insurance Activities, U.S. & U.K.), AXA 75008 Paris, France Life * Joseph L. Dionne Chairman and Chief Executive Officer, The McGraw-Hill Companies The McGraw-Hill Companies (publishing) 1221 Avenue of the Americas New York, NY 10020 * William T. Esrey Chairman and Chief Executive Officer, Sprint Corporation Sprint Corporation (telecommunications) P.O. Box 11315 Kansas City, MO 64112 * Jean-Rene Fourtou (1) Chairman and Chief Executive Officer, Rhone-Poulenc S.A. Rhone-Poulenc S.A. (manufacturer of 25 quai Paul Doumer chemicals and agricultural products) 92408 Courbevoie Cedex France * Jacques Friedmann (1) Chairman of the Supervisory Board, AXA AXA 9, Place Vendome 75001 Paris France Robert E. Garber Executive Vice President and General Counsel; Executive Vice President and General Counsel, The Equitable Life Assurance Society of the United States Jerome S. Golden Executive Vice President; Executive Vice President, The Equitable Life Assurance Society of the United States * Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, LeBoeuf, Lamb, Greene & Lamb, Greene & MacRae, L.L.P. (law MacRae, L.L.P. firm) 125 West 55th Street New York, NY 10019 * Anthony J. Hamilton (2) Group Chairman and Chief Executive Fox-Pitt, Kelton Group Limited Officer, Fox-Pitt, Kelton Group 35 Wilson Street Limited (finance) London, England EC2M 2SJ * John T. Hartley Retired Chairman and Chief Executive Harris Corporation Officer, currently Director, Harris 1025 NASA Boulevard Corporation (manufacturer of electronic, Melbourne, FL 32919 telephone and copying systems) * John H. F. Haskell, Jr. Director and Managing Director, SBC Dillon, Read & Co., Inc. Warburg Dillon Read, Inc. (formerly 535 Madison Avenue Dillon, Read & Co., Inc.) New York, NY 10022 (investment banking firm) * Michael Hegarty Vice Chairman and Chief Operating Officer; President and Chief Operating Officer, The Equitable Life Assurance Society of the United States * Mary R. (Nina) Henderson President, Best Foods Grocery Best Foods Grocery (food manufacturer) 700 Sylvan Avenue Englewood, NJ 07632 * W. Edwin Jarmain (3) President, Jarmain Group Inc. (private Jarmain Group Inc. investment holding company) Suite 2525 121 King Street West Toronto, Ontario M5H 3T9 Canada * Edward D. Miller President and Chief Executive Officer; Chairman and Chief Executive Officer, The Equitable Life Assurance Society of the United States Peter D. Noris Executive Vice President and Chief Investment Officer; Executive Vice President and Chief Investment Officer, The Equitable Life Assurance Society of the United States * Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer, 64/70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment) 92646 Boulogne Cedex, France * George J. Sella, Jr. Retired Chairman, President and Chief American Cyanamid Company Executive Officer, American Cyanamid P.O. Box 397 Company (manufacturer of pharmaceutical Newton, NJ 07860 products and agricultural products) Jose Suquet Executive Vice President; Senior Executive Vice President and Chief Distribution Officer; The Equitable Life Assurance Society of the United States Stanley B. Tulin Executive Vice President and Chief Financial Officer; Vice Chairman and Chief Financial Officer, The Equitable Life Assurance Society of the United States * Dave H. Williams Chairman and Chief Executive Officer, Alliance Capital Alliance Capital Management Corp. Management Corporation (investment adviser) 1345 Avenue of the Americas New York, NY 10105 - ---------- * Director (1) Citizen of the Republic of France (2) Citizen of United Kingdom (3) Citizen of Canada Schedule J Members of Executive Committee and Supervisory Board of AXA The names and titles (for the Executive Committee members) of the Members of the Executive Committee and Supervisory Board of AXA and their business addresses and principal occupations are set forth below. If no address is given, the Member's business is 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA and each individual is a citizen of the Republic of France. Members of the Executive Committee Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Claude Bebear Chairman of the Executive Board Donald Brydon (1) Senior Executive Vice President, Chief Executive, AXA Investment Manager Europe Henri de Castries Senior Executive Vice President, Financial Services and Insurance Activities (U.S. , U.K. and Benelux) John Chalsty (2) Senior Executive Vice President; Chairman, Donaldson, Lufkin & Jenrette, Inc. (investment banking) Francoise Colloc'h Senior Executive Vice President, Group Human Resources and Communications Jean-Pierre Gerard (3) Senior Executive Vice President; Chief Executive Officer, Royale Belge (insurance) Denis Kessler Advisor to Claude Bebear Claus Kleyboldt (4) Senior Executive Vice President; Chairman of the Executive Board of AXA Colonia Konszern AG (insurance) Gerard de La Martiniere Senior Executive Vice President, Chief Financial Officer Edward D. Miller (2) Senior Executive Vice President; Chief Executive Officer, The Equitable Companies Incorporated Jean-Louis Meunier Senior Executive Vice President, Central Underwriting Officer Michel Pinault Senior Executive Vice President, Group Administration Claude Tendil Senior Executive Vice President, French Insurance Activities, international risks, transborder insurance projects and information systems policy Geoff Tomlinson (5) Senior Executive Vice President; Managing Director, National Mutual Holdings (insurance) Dave H. Williams (2) Senior Executive Vice President; Chairman and Chief Executive Officer, Alliance Capital Management Corporation (investment adviser) Mark Wood (1) Senior Executive Vice President; Managing Director, Sun Life & Provincial Holdings plc Members of the Supervisory Board Name, Business Address Present Principal Occupation - ---------------------- ---------------------------- Jacques Friedmann Chairman of the Supervisory Board 9, Place Vendome 75008 Paris, France Jean-Louis Beffa Chairman and Chief Executive "Les Miroirs" Officer, Cedex 27 Compagnie de St. Gobain (industry) 92096 Paris La Defense, France Antoine Bernheim General Partner, Lazard Freres et Cie 121, Avenue Haussman (investment banking); Chairman, 75008 Paris, France Assicurazioni Generali S.p.A. (insurance) Jacques Calvet Former Chairman of the Executive 75, avenue de la Grande Armee Board, Peugeot S.A. (auto 75116 Paris, France manufacturer) Henri de Clermont - Tonnerre Chairman of the Supervisory Board, 4 Avenue Van Dyke Qualis SCA (transportation) 75008 Paris, France David Dautresme General Partner, Lazard Freres et Cie 121, Boulevard Haussman (investment banking) 75008 Paris, France Guy Dejouany Honorary Chairman, Compagnie 52, rue d'Anjou Generale des Eaux (industry and 75008 Paris, France services) Paul Desmarais (7) Chairman and Chief Executive 751, Square Victoria Officer, Power Corporation (industry Montreal Quebec and services) H3Y 3JY Canada Jean-Rene Fourtou Chairman and Chief Executive 25, quai Paul Doumer Officer, Rhone-Poulenc S.A. 93408 Courbevoie Cedex (industry) France Michel Francois-Poncet Chairman of the Supervisory Board, 5, Rue d'Antin Compagnie Financiere de Paribas 75002 Paris, France (financial services and banking) Patrice Garnier Director, Finaxa Latreaumont 76360 Baretin, France Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton 35 Wilson Street Group Limited (finance) London, England EC2M 2SJ Henri Hottinguer (6) Vice Chairman, Financiee Hottinguer 38, rue de Provence (banking) 75009 Paris, France Richard H. Jenrette (2) Senior Advisor, Donaldson, Lukfin c/o Donaldson, Lukfin & Jenrette, & Jenrette, Inc. (investment banking) Inc. 277 Park Avenue New York, New York 10172 Henri Lachmann Chairman and Chief Executive 56, rue Jean Giraudoux Officer, Strafor Facom (office 67200 Strasbourg, France furniture) Gerard Mestrallet Chairman of the Executive Board 1, rue d'Astorg (finance) Suez Lyonnaise des Eaux 75008 Paris, France Friedel Neuber Chairman of the Executive Board, Girozentrade Herzogstrasse 15 WestDeutsche Landesbank (banking) D40127 Dusseldorf, Germany Alfred von Oppenheim (4) Chairman, Bank Oppenheim Konsortium Oppenheim (banking) Unter Sachsenrausen 4 50667 Koln, Germany Michel Pebereau Chairman and Chief Executive 16, Boulevard des Italiens Officer, Banque Nationale de Paris 75009 Paris, France (banking) Didier Pineau-Valencienne Chairman and Chief Executive 64-70, avenue Jean Baptiste Clement Officer, Schneider S.A. (electric 92646 Boulogne Cedex, France equipment) Bruno Roger General Partner, Lazard Freres & 121, Boulevard Haussman Cie (investment banking) 75008 Paris, France Simone Rozes First Honorary President, Cour de 2, rue Villaret de Joyeuse Cassation (government) 75017 Paris, France - ------------ (1) Citizen of the United Kingdom (2) Citizen of the United States of America (3) Citizen of Belgium (4) Citizen of Germany (5) Citizen of Australia (6) Citizen of Switzerland (7) Citizen of Canada Schedule K Executive Officers and Members of Conseil d'Administration of FINAXA The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of Finaxa and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of Finaxa at 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Finaxa and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman and Chief Executive Officer; Chairman of the Executive Board, AXA * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis 4, avenue Van Dyke SCA (transportation) 75008 Paris, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Hottinguer (1) Chairman, Credit Suisse Hottinguer Paris 38, rue de Provence (banking) 75009 Paris, France * Paul Hottinguer (1) Member of the Supervisory Board, Credit 38, rue de Provence Suisse Hottinguer Paris (banking) 75009 Paris, France * Henri Lachmann Chairman and Chief Executive Officer, 56, rue Jean Giraudoux Strafor Facom (office furniture) 67000 Strasbourg, France * Andre Levy-Lang Chief Executive Officer, Paribas 3, rue d'Antin (banking) 75002 Paris, France * Christian Manset Vice Chairman of the Supervisory Board, 3, rue d'Antin Paribas 75002 Paris, France * Georges Rousseau Retired Le Hameau de Verguetot 76430 Oudalle, France * Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking) Paseo de la Castillone, 8 28046 Madrid, Spain - ---------- * Member, Conseil d'Administration (1) Citizen of Switzerland (2) Citizen of Spain Schedule L Executive Officers and Members of Conseil d'Administration of AXA ASSURANCES I.A.R.D. MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA 75008 Paris, France * Jean-Luc Bertozzi Executive Vice President ASSE (represented by) Jean-Pierre Chaffin Manager, Federation de la Metallurgie 5, rue la Bruyere (industry) 75009 Paris, France * Gerard Coutelle Retired 7, rue Gounot 75007 Paris, France * Henri de Castries Senior Executive Vice President, 23, avenue Matignon Financial Services and Life Insurance 75008 Paris, France Activities (U.S. & U.K. and Benelux), AXA * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Chairman and Chief Executive Officer, 56, rue Jean Giraudoux Strafor Facom (office furniture) 67000 Strasbourg, France * Francois Richer Retired 82, Avenue de Wagram 75017 Paris, France Georges Rousseau Retired * Lehameau de Verguetot 76430 Oudalle, Frances * Claude Tendil Chief Executive Officer; Senior Tour Assur 38F Executive Vice President, French 92083 Paris La Defense, France Insurance Activities, AXA * Francis Vaudour Chief Executive Officer, Segafredo 14, boulevard Industriel Zanetti France S.A. (coffee importing 76301 Sotteville les Rouen, and processing) France * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, 4. avenue Van Dyke Qualis SCA (transportation) 75008 Paris, France - ---------- * Member, Conseil d'Administration Schedule M Executive Officers and Members of Conseil d'Administration of AXA ASSURANCES VIE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Assurances Vie Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive 23, avenue Matignon Board, AXA 75008 Paris, France * Bernard Cornille Audit Manager, AXA Assurances 21, rue de Chateaudun 75009 Paris, France * Henri de Castries Senior Executive Vice President, 23, avenue Matignon Financial Services and Life Insurance 75008 Paris, France Activities (U.S. & U.K.), AXA * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, 4, avenue Van Dyke Qualis SCA (transportation) 75008 Paris, France * Patrice Garnier Latreaumont Retired 76360 Baretin, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Henri Lachmann Vice Chairman; Chairman and Chief 56, rue Jean Giraudoux Executive Officer, Strafor Facom 67000 Strasbourg, France (office furniture) * Francois Richer Retired 82, avenue de Wagram 75017 Paris, France * Georges Rousseau Retired Le Hameau de Verguetot 76430 Oudalle, France * Claude Tendil Chief Executive Officer; Senior Tour Assur 38F Executive Vice President, French 92083 Paris La Defense, France Insurance Activities, AXA * Francis Vaudour Chief Executive Officer, Segafredo 14, boulevard Industriel Zanetti France S.A. (coffee importing 76301 Sotteville les Rouen, France and processing) * Francis Cordier Chairman and Chief Executive Officer, Rue Nicephore Niepcc Group Demay Lesieur (food industry) BP 232 - 76304 Sotteville Les Rouen, France - --------- * Member, Conseil d'Administration Schedule N Executive Officers and Members of Conseil d'Administration of AXA COURTAGE ASSURANCE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive 23, avenue Matignon Board, AXA 75008 Paris, France * Francis Cordier Chairman and Chief Executive Officer, Rue Nicephore Niepce Group Demay Lesieur (food industry) BP 232 76304 Sotteville Les Rouen, France * Gerard Coutelle Retired 7, rue Gounot 75007 Paris, France * Henri de Castries Senior Executive Vice President, 23, avenue Matignon Financial Services and Life Insurance 75008 Paris, France Activities (U.S. & U.K. and Benelux), AXA * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Vice Chairman; Chairman and Chief 56, rue Jean Giraudoux Executive Officer, Strafor Facom 67000 Strasbourg, France (office furniture) * Francis Magnan Chairman and Chief Executive Officer, 50, boulevard des Dames Compagnie Daher (air and sea 13002 Marseille, France transportation) * Jean de Ribes Chairman and Chief Executive Officer, 38, rue Fortuny Banque Rivaud (banking) 75008 Paris, France * Georges Rousseau Retired Le Hameau de Verguetot 76430 Oudalle, France * ASSE Manager, Represented by Jean - Pierre Chappin Federation de la Metallurgie (industry) 11, rue de Rome 75008 Paris, France * Claude Tendil Chief Executive Officer; Senior Tour Assur 38F Executive Vice President, French 92083 Paris La Defense, France Insurance Activities, AXA - ------------ * Member, Conseil d'Administration Schedule O Executive Officers and Members of Conseil d'Administration of ALPHA ASSURANCES VIE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of Alpha Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Alpha Assurances Vie Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA 75008 Paris, France * Henri Brischoux Corporate Secretary; AXA Assurance France Tour Assur 38 92083 Paris La Defense, France * Bernard Cornille Audit Manager, AXA Assurances 21, rue de Chateaudun 75009 Paris, France * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities (U.S. 75008 Paris, France & U.K.), AXA * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis 4, avenue Van Dyke SCA (transportation) 75008 Paris, France * Claude Fath Chairman of the Executive Board, UAP Vie Tour Assur 28F 92083 Paris Las Defense, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, 25, quai Paul Doumer Rhone-Poulenc S.A. (industry) 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Vice Chairman; Chairman and Chief 56, rue Jean Giraudoux Executive Officer, Strafor Facom (office 67000 Strasbourg, France furniture) * Georges Rousseau Retired Le Hameau de Verguetot, 76430 Oudalle, France * Claude Tendil Chief Executive Officer; Senior Executive Tour Assur 38F Vice President, French Insurance Activities, 92083 Paris La Defense, AXA France * Francis Vaudour Chief Executive Officer, Segafredo Zanetti 14, boulevard Industriel France S.A. (coffee importing and 76301 Sotteville les Rouen, processing) France - ---------- * Member, Conseil d'Administration EX-5 2 EXHIBIT 5 SUBSCRIPTION AGREEMENT dated as of May 22, 1998 among MERCURY ACQUISITION CORPORATION and THE BUYERS NAMED HEREIN relating to the purchase and sale of Common Stock Preferred Stock and Warrants of Mercury Acquisition Corporation TABLE OF CONTENTS Page ---- ARTICLE 1 Definitions Section 1.1. Definitions.............................................1 ARTICLE 2 Purchase and Sale Section 2.1. Purchase and Sale.......................................3 Section 2.2. Closing.................................................3 ARTICLE 3 Representations and Warranties of Seller Section 3.1. Corporate Existence and Power...........................4 Section 3.2. Corporate Authorization.................................4 Section 3.3. Governmental Authorization..............................4 Section 3.4. Noncontravention........................................4 Section 3.5. Capitalization and Voting Rights........................5 Section 3.6. Valid Issuance of Securities............................5 Section 3.7. Litigation..............................................6 Section 3.8. Newly Formed Corporation................................6 Section 3.9. Meaning of Seller.......................................6 ARTICLE 4 Representations and Warranties of Buyers Section 4.1. Existence and Power.....................................6 Section 4.2. Authorization...........................................7 Section 4.3. Governmental Authorization..............................7 Section 4.4. Purchase for Investment.................................7 Section 4.5. Private Placement.......................................7 Section 4.6. Litigation..............................................8 Section 4.7. Brokers or Finders' Fees................................8 ARTICLE 5 Conditions to Closing Section 5.1. Conditions to Obligations of Each Buyer and the Seller..9 Section 5.2. Conditions to Obligation of Each Buyer..................9 Section 5.3. Conditions to Obligation of the Seller.................10 ARTICLE 6 Survival; Indemnification Section 6.1. Survival...............................................10 Section 6.2. Indemnification........................................11 Section 6.3. Exclusivity............................................11 ARTICLE 7 Termination Section 7.1. Grounds for Termination................................12 Section 7.2. Effect of Termination..................................12 ARTICLE 8 Miscellaneous Section 8.1. Notices................................................12 Section 8.2. Amendments and Waivers.................................13 Section 8.3. Expenses...............................................14 Section 8.4. Successors and Assigns.................................14 Section 8.5. Governing Law..........................................14 Section 8.6. Jurisdiction...........................................14 Section 8.7. Waiver Of Jury Trial...................................14 Section 8.8. Counterparts; Third Party Beneficiaries................14 Section 8.9. Entire Agreement.......................................15 Section 8.10. Captions...............................................15 Section 8.11. Severability...........................................15 Section 8.12. Interpretation.........................................15 Schedule A Schedule of Investors Exhibit A Certificate of Incorporation of Mercury Acquisition Corporation Exhibit B Preferred Stock Exhibit C Form of Warrant Exhibit D Form of Investors' Agreement SUBSCRIPTION AGREEMENT AGREEMENT dated as of May 22, 1998 between Mercury Acquisition Corporation, a Delaware corporation ("Seller") and the Persons named on Schedule A hereto (each a "Buyer" and collectively, the "Buyers"). W I T N E S S E T H : WHEREAS, the Seller has agreed to merge with and into Thermadyne Holdings Corporation (the "Company") on the terms and conditions set forth in the Agreement and Plan of Merger dated as of January 20, 1998 (the "Merger") between the Seller and the Company, as amended (as amnded, and as the same may be further amended from time to time, the "Merger Agreement"); WHEREAS, to finance, in part, the payment of the consideration payable in the Merger, the Seller intends to issue shares of common stock, par value $0.01 per share (the "Common Stock"), shares of preferred stock (the "Preferred Stock") and warrants to purchase common stock (the "Warrants" and, together with the Common Stock and the Preferred Stock, the "Securities"); WHEREAS, all of the outstanding capital stock of the Seller is currently owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB") and affiliated funds and entities (collectively, the "DLJMB Entities"); WHEREAS, the Seller desires to issue and sell the relevant Securities to each of the Buyers, and each of the Buyers desires to purchase the relevant Securities from the Seller, upon the terms and subject to the conditions hereinafter set forth; The parties hereto agree as follows: ARTICLE 1 Definitions Section 1.1. 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. "Closing Date" means the date of the Closing. "Common Share" means one share of Common Stock. "Investors' Agreement" means the Investors' Agreement dated as of the Closing Date among Mercury Acquisition Corporation, DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJMB Funding II, Inc., DLJ EAB Partners, L.P., UK Investment Plan 1997 Partners, DLJ First ESC, L.P., and DLJ ESC II, L.P. "Lien" means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest or encumbrance in respect of such property or asset. "1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "1933 Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "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. "Transaction Documents" means this Agreement, the Merger Agreement, the Investors' Agreement and the Warrants. (b) Each of the following terms is defined in the Section set forth opposite such term: Term Section Accredited Investor 4.06(h) Certificate of Incorporation 3.05 Closing 2.2 Common Stock Recitals Company Recitals Damages 6.2 DLJMB Recitals Preferred Stock Recitals Purchase Price 2.1 Securities Recitals Warrants Recitals ARTICLE 2 Purchase and Sale Section 2.1. Purchase and Sale. Upon the terms and subject to the conditions of this Agreement, the Seller agrees to issue and sell to each Buyer and each Buyer agrees, severally and not jointly, to purchase from the Seller the Securities set forth opposite such Buyer's name on Schedule A hereto at the Closing. The purchase price for the Securities (the "Purchase Price") is the amount in cash specified on Schedule A hereto. The Purchase Price shall be paid as provided in Section 2.2. Section 2.2. Closing. The closing (the "Closing") of the purchase and sale of the Securities hereunder shall take place at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York, as soon as possible, but in no event later than five business days, after satisfaction of the conditions set forth in Article 5, or at such other time or place as Buyers and Seller may agree. At the Closing: (a) Each Buyer shall deliver to the Seller, in immediately available funds, Seller's amount of the aggregate Purchase Price set forth opposite such Buyer's name on Schedule A hereto, by wire transfer (or other means acceptable to Seller) to an account of the Seller with a bank in New York City designated by Seller, by notice to such Buyer, not later than two business days prior to the Closing Date. (b) The Seller shall deliver to each Buyer certificates, or other appropriate documentation, for the relevant Securities duly registered in the name of such Buyer. ARTICLE 3 Representations and Warranties of Seller The Seller represents and warrants to each Buyer as of the date hereof and as of the Closing Date that: Section 3.1. Corporate Existence and Power. The Seller is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted and as proposed to be conducted. Section 3.2. Corporate Authorization. The execution, delivery and performance by the Seller of each of the relevant Transaction Documents and the consummation of the transactions contemplated hereby and thereby (including the issuance and sale of the Securities) are within the Seller's corporate powers and have been duly authorized by all necessary corporate action on the part of the Seller. Each of the relevant Transaction Documents constitutes or, when executed, will constitute a valid and binding agreement of the Seller, enforceable against the Seller in accordance with its respective terms, except (i) as limited by the applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement or creditors' rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. Section 3.3. Governmental Authorization. The execution, delivery and performance by the Seller of each of the relevant Transaction Documents and the consummation of the transactions contemplated hereby and thereby require no order, license, consent, authorization or approval of, or exemption by, or action by or in respect of, or notice to, or filing or registration with, any governmental body, agency or official except such as have been obtained and the filing of the Certificate of Designation by the Seller for the Preferred Stock with the office of the Secretary of State for the State of Delaware. Section 3.4. Noncontravention. The execution, delivery and performance by Seller of each of the relevant Transaction Documents and the consummation of the transactions contemplated hereby and thereby do not and will not (i) violate the certificate of incorporation or bylaws of Seller, (ii) violate any applicable law, rule, regulation, judgment, injunction, order or decree, (iii) require any consent or other action by any Person under, constitute a default under (with due notice or lapse of time or both), or give rise to any right of termination, cancellation or acceleration of any right or obligation of the Seller or to a loss of any benefit to which Seller is entitled under any provision of any agreement or other instrument binding upon the Seller or any of the Seller's assets or properties or (iv) result in the creation or imposition of any material Lien on any property or asset of the Seller. Section 3.5. Capitalization and Voting Rights. (a) The authorized capital stock of the Seller consists of 30,000,000 shares of Common Stock and 15,000,000 shares of Preferred Stock, and the outstanding capital stock of the Seller immediately prior to the Closing is 58,000 shares of Common Stock and no shares of Preferred Stock. The rights, privileges and preferences of the Common Stock are set forth in the Certificate of Incorporation attached hereto as Exhibit A (the "Certificate of Incorporation") and the rights, privileges and preferences of the Preferred Stock are set forth in the Certificate of Designation attached hereto as Exhibit B. (b) Immediately following the Closing the outstanding capital stock of Seller will be 2,608,696 shares of Common Stock, 2 million shares of Preferred Stock and Warrants to purchase 353,428 shares of Common Stock. The Form of Warrant is attached hereto as Exhibit C. (c) Except as set forth in this Section 3.05 there are, and immediately after the Closing there will be, no outstanding (i) shares of capital stock or voting securities of the Seller, (ii) securities of the Seller convertible into or exchangeable for shares of capital stock or voting securities of the Seller, (iii) options or other rights to acquire from the Seller, or other obligation of the Seller to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Seller or (iv) other than as expressly permitted in the Transaction Documents or employment plans, no obligation of the Seller to repurchase or otherwise acquire or retire any shares of capital stock or any convertible securities, rights or options of the type described in (i), (ii), or (iii). Section 3.6. Valid Issuance of Securities. Each of the Securities (other than the Warrants) which are being issued to the Buyers hereunder, have been duly and validly authorized and when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, will be fully paid and nonassessable. The Warrants, when executed and delivered will constitute valid and binding obligations of the Seller, enforceable in accordance with their terms. The Seller has reserved and will keep available for issuance upon exercise of the Warrants the total number of Warrant Shares (as defined in the Warrants) deliverable upon exercise of all Warrants from time to time outstanding. The issuance of the Warrant Shares has been duly and validly authorized and, when issued and sold in accordance with the Warrants, the Warrant Shares will be duly and validly issued, fully paid and nonassessable and free of preemptive rights. Section 3.7. Litigation. There is no action, suit, investigation or proceeding pending against, or to the knowledge of the Seller, threatened against or affecting the Seller or any of its respective properties 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 contemplated by this Agreement or which could reasonably be expected to have a material adverse effect on the business, financial condition, properties or operations of the Seller, nor is the Seller aware that there is any basis for the foregoing. Section 3.8. Newly Formed Corporation. The Seller was incorporated on January 16, 1998 in the State of Delaware solely for the purpose of effectuating the transactions contemplated in this Agreement and the Merger Agreement and has not conducted any business or entered into any agreements or commitments except with respect to the foregoing. Section 3.9. Meaning of Seller. Except as otherwise specifically provided herein, references to the Seller contained in this Article 3 shall be construed to refer to the Seller on the date hereof and for purposes of Section 5.02(a)(ii) immediately prior to the consummation of the transactions contemplated by the Merger Agreement. ARTICLE 4 Representations and Warranties of Buyers Each Buyer represents and warrants to the Seller, severally as to itself only and not jointly or as to any other Buyer, as of the date hereof and as of the Closing Date that: Section 4.1. Existence and Power. Such Buyer, if not an individual, is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all powers (corporate, partnership or otherwise) and all material governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted. Such Buyer, if an individual, has the legal capacity to enter into this Agreement and the Investors' Agreement. Section 4.2. Authorization. The execution, delivery and performance by such Buyer of each of this Agreement, and when executed, the Investors' Agreement and the consummation of the transactions contemplated hereby and thereby are or, when executed, will be within the powers (corporate, partnership or otherwise) of such Buyer and have been or will have been duly authorized by all necessary action on the part of such Buyer. This Agreement constitutes and the Investors' Agreement, when executed, will constitute a valid and binding agreement of such Buyer, each enforceable in accordance with their respective terms, except (i) as limited by the applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement or creditors' rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. Section 4.3. Governmental Authorization. The execution, delivery and performance by such Buyer of this Agreement and the Investors' Agreement and the consummation of the transactions contemplated hereby and thereby require no order, license, consent, authorization or approval of, or exemption by, or action by or in respect of, or notice to, or filing or registration with, any governmental body, agency or official. Section 4.4. Purchase for Investment. Such Buyer is purchasing the relevant Securities for investment for its own account and not with a view to, or for sale in connection with, any distribution thereof. Section 4.5. Private Placement. (a) Such Buyer understands that (i) the offering and sale of the Securities hereby is intended to be exempt from registration under the 1933 Act and (ii) there is only a limited market for the relevant Securities, and there can be no assurance that any Buyer will be able to sell or dispose of the relevant Securities to be purchased by such Buyer. (b) Such Buyer's financial situation is such that such Buyer can afford to bear the economic risk of holding the relevant Securities acquired hereunder for an indefinite period of time, and such Buyer can afford to suffer the complete loss of the investment in the relevant Securities. (c) Such Buyer's knowledge and experience in financial and business matters are such that it is capable of evaluating the merits and risks of the investment in the relevant Securities, or such Buyer has been advised by a representative possessing such knowledge and experience. (d) Such Buyer understands that the Securities acquired hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there are substantial restrictions on the transferability of the Securities as set forth in the Investors' Agreement, and that for an indefinite period following the date hereof there will be no (or only a limited) public market for the Securities and that, accordingly, it may not be possible for such Buyer to sell the Securities in case of emergency or otherwise. (e) Such Buyer and its representatives, including, to the extent it deems appropriate, its professional, financial, tax and other advisors, have reviewed all documents provided to them in connection with the investment in the Securities, and such Buyer understands and is aware of the risks related to such investment. (f) Such Buyer and its representatives have been given the opportunity to examine all documents and to ask questions of, and to receive answers from, Seller and its representatives concerning the terms and conditions of the acquisition of the Securities and related matters and to obtain all additional information which such Buyer or its representatives deem necessary. (g) All information which such Buyer has provided to Seller and its representatives concerning such Buyer and such Buyer's financial position is true, complete and correct, and such Buyer agrees to promptly notify Seller if at any time this ceases to be the case prior to the Closing. (h) Such Buyer is an "accredited investor" as such term is defined in Regulation D under the 1933 Act. Section 4.6. 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 contemplated by this Agreement or the Investors' Agreement. Section 4.7. Brokers or Finders' Fees. There is no investment banker, broker, finder or other intermediary which has been retained by, will be retained by or is authorized to act on behalf of such Buyer who might be entitled to any fee or commission from the Company, the Seller or the DLJ Entities upon consummation of the transactions contemplated by this Agreement. ARTICLE 5 Conditions to Closing Section 5.1. Conditions to Obligations of Each Buyer and the Seller. The obligations of each Buyer and the Seller to consummate the Closing are subject to the satisfaction of the following conditions: (a) No provision of any applicable law, rule or regulation and no judgment, injunction, order or decree by any governmental entity of competent jurisdiction shall prohibit the consummation of the Closing or the Merger. (b) All material actions by or in respect of, or filings with, any governmental body, agency, official or authority required to permit the consummation of the Closing shall have been taken, made or obtained. (c) The conditions to the consummation of the Merger Agreement shall have been satisfied or waived and the Merger shall have been consummated as contemplated by the Merger Agreement, with any waiver of conditions and any other changes having been consented to by each of the DLJMB Funds. (d) The Certificate of Designation for the Preferred Stock shall have been duly filed at the office of the Secretary of State of the State of Delaware. (e) Each other Buyer shall have purchased the Securities to be purchased by it hereunder by paying the Purchase Price applicable thereto in accordance with Section 2.02. (f) Each Buyer and the Seller shall have entered into the Investors' Agreement on substantially the terms set forth in the term sheet attached hereto as Exhibit D. Section 5.2. Conditions to Obligation of Each Buyer. The obligation of each Buyer to consummate the Closing is subject to the satisfaction of the following further conditions: (a) (i) The Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to the Closing Date and (ii) the representations and warranties of the Seller contained in this Agreement and in any certificate or other writing delivered by the Seller pursuant hereto shall be true in all material respects when made and at and as of the Closing Date, as if made at and as of such date. (b) Such Buyer shall have received all documents it may reasonably request relating to the existence of the Seller and the authority of the Seller for this Agreement, all in form and substance reasonably satisfactory to such Buyer. Section 5.3. Conditions to Obligation of the Seller. The obligation of the Seller to consummate the Closing with respect to any Buyer is subject to the satisfaction of the following further conditions: (a) (i) Such Buyer shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date and (ii) the representations and warranties of such Buyer contained in this Agreement and in any certificate or other writing delivered by such Buyer pursuant hereto shall be true in all material respects when made and at and as of the Closing Date, as if made at and as of such date. (b) The Seller shall have received all documents it may reasonably request relating to the existence of such Buyer and the authority of such Buyer for this Agreement, all in form and substance reasonably satisfactory to the Seller. ARTICLE 6 Survival; Indemnification Section 6.1. Survival. The representations and warranties of the parties hereto contained in this Agreement or in any certificate delivered pursuant hereto or in connection herewith shall survive the Closing until twelve months after the Closing Date. Notwithstanding the preceding sentence, any 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 such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time, but only as to such inaccuracy or breach. A breach of any representation or warranty made in this Agreement shall not affect in any manner whatsoever the relative rights and obligations of the parties to and under the Investors' Agreement. Section 6.2. Indemnification. (a) The Seller hereby indemnifies, severally and not jointly, each Buyer and its Affiliates, limited partners, general partners, directors, officers and employees against and agrees to hold each of them 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 any such party arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by the Seller pursuant to this Agreement; provided that with respect to any Buyer, (i) the Seller shall not be liable under this Section 6.02(a) unless the aggregate amount of Damages with respect to all matters referred to in this Section 6.02(a) for which such Buyer has sought indemnification exceeds $100,000 and then only to the extent of such excess and (ii) Seller's maximum liability under this Section 6.02(a) shall not exceed the amount of the Purchase Price paid by such Buyer to the Seller. (b) Each Buyer hereby indemnifies, severally and not jointly, the Seller and its Affiliates, limited partners, general partners, directors, officers and employees against and agrees to hold each of them harmless from any and all Damages incurred or suffered by any such party arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by such Buyer pursuant to this Agreement; provided that (i) such Buyer shall not be liable under this Section 6.02(b) unless the aggregate amount of Damages with respect to all matters referred to in this Section 6.02(b) exceeds $100,000 and then only to the extent of such excess and (ii) such Buyer's maximum liability under this Section 6.02(b) shall not exceed the amount of Purchase Price paid by such Buyer to the Seller. Section 6.3. Exclusivity. After the Closing, Section 6.2 will provide the exclusive remedy for any misrepresentation, breach of warranty, covenant or other agreement or other claim arising out of this Agreement or the transactions contemplated hereby. ARTICLE 7 Termination Section 7.1. Grounds for Termination. This Agreement may be terminated at any time prior to the Closing: (a) by mutual written agreement of the Seller and Buyers; (b) by the Seller or any Buyer as to the Seller or Buyer if the Closing shall not have been consummated as of the close of business on June 30, 1998; or (c) by the Seller or any Buyer if consummation of the transactions contemplated hereby would violate any non-appealable final order, decree or judgment of any court or governmental body having competent jurisdiction. The party desiring to terminate this Agreement pursuant to clauses 7.01(b) or (c) shall give notice of such termination to the other party. Section 7.2. Effect of Termination. If this Agreement is terminated as permitted by Section 7.01, such termination shall be without liability of either party (or any stockholder, general partner, limited partner, director, officer, employee, agent, consultant or representative of such party) to the other party to this Agreement; provided that if such termination shall result from the willful (i) failure of either party to fulfill a condition to the performance of the obligations of the other party, (ii) failure to perform a covenant of this Agreement or (iii) breach by either party hereto of any representation or warranty or agreement contained herein, such party shall be fully liable for any and all Damages incurred or suffered by the other party as a result of such failure or breach. The provisions of Sections 8.3, 8.5 and 8.6 shall survive any termination hereof pursuant to Section 7.1. ARTICLE 8 Miscellaneous Section 8.1. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given, if to any Buyer, to such Buyer at the address specified by such Buyer on the signature pages of this Agreement or in a notice given by such Buyer to the Seller for such purpose; if to the Seller, to: Mercury Acquisition Corporation c/o DLJ Merchant Banking Partners II, L.P. 277 Park Avenue New York, New York 10172 Attention: William F. Dawson, Jr. Fax: (212) 892-7553 with a copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: George R. Bason, Jr. Fax: (212) 450-4800 or to such other address or telecopy number and with such other copies as such party may hereafter specify for the purpose of notice. 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 8.2. 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. (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 8.3. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense, except that if the Closing shall occur, the Company shall reimburse the DLJ Entities for all costs and expenses incurred by such entities. Section 8.4. 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 8.5. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York. Section 8.6. Jurisdiction. 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 only be brought in the United States District Court for the Southern District of New York or any 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 8.7. 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 8.8. 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. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party hereto. No provision of this Agreement shall confer upon any Person other than the parties hereto any rights or remedies hereunder. Section 8.9. Entire Agreement. This Agreement along with the Investors' Agreement (including the documents, schedules and exhibits referred to herein and therein) and the other Exhibits hereto constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement. Section 8.10. Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. Section 8.11. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be executed from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforced in accordance with its terms to the maximum extent permitted by law. Section 8.12. Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 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. MERCURY ACQUISITION CORPORATION By: ------------------------------ Name: Title: DLJ MERCHANT BANKING PARTNERS II, L.P., a Delaware Limited Partnership By: DLJ Merchant Banking II, Inc., as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ MERCHANT BANKING PARTNERS II-A, L.P., a Delaware Limited Partnership By: DLJ Merchant Banking II, Inc., as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ OFFSHORE PARTNERS II, C.V., a Netherlands Antilles Limited Partnership By: DLJ Merchant Banking II, Inc., as advisory general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ DIVERSIFIED PARTNERS, L.P., a Delaware Limited Partnership By: DLJ Diversified Partners, Inc., as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ DIVERSIFIED PARTNERS-A, L.P., a Delaware Limited Partnership By: DLJ Diversified Partners, Inc., as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ MILLENNIUM PARTNERS, L.P., a Delaware Limited Partnership By: DLJ Merchant Banking II, Inc., as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ MILLENNIUM PARTNERS-A, L.P. By: DLJ Merchant Banking II, Inc., as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJMB FUNDING II, INC., a Delaware corporation By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ FIRST ESC, L.P., By: DLJ LBO Plans Management Corporation, as manager By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 UK INVESTMENT PLAN 1997 PARTNERS By: Donaldson, Lufkin & Jenrette, Inc., as general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ EAB PARTNERS, L.P. By: DLJ LBO Plans Management Corporation, as managing general partner By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation, as manager By: ------------------------------ Name: Title: Address: c/o DLJ Merchant Banking II, Inc. 277 Park Avenue New York, NY 10172 Fax: 212-892-7272 SCHEDULE A
No. of No. of Common Preferred No. of Aggregate Investor Shares Shares Warrants Purchase Price(*) -------- ------ --------- -------- ----------------- DLJ Merchant Banking Partners II, 1,643,283 1,259,850 222,634 $88,189,513.50 L.P. DLJ Merchant Banking Partners II-A, 65,443 50,173 8,866 3,512,108.50 L.P. DLJ Offshore Partners II, C.V. 80,808 61,953 10,948 4,336,701.00 DLJ Diversified Partners, L.P. 96,074 73,657 13,016 5,155,978.00 DLJ Diversified Partners-A, L.P. 35,679 27,354 4,834 1,914,775.50 DLJMB Funding II, Inc. 291,758 223,680 39,527 15,657,651.00 DLJ Millennium Partners, L.P. 26,570 20,370 3,600 1,425,915.00 DLJ Millennium Partners-A, L.P. 5,182 3,973 702 278,104.00 DLJ EAB Partners, L.P. 7,378 5,657 1,000 395,966.00 UK Investment Plan 1997 Partners 43,478 33,333 5,890 2,333,316.00 DLJ ESC II, L.P. 309,881 237,576 41,983 16,630,294.50 DLJ First ESC, L.P. 3,162 2,424 428 169,689.00 Total 2,608,696 2,000,000 353,428 $140,000,012.00
- ---------- (*) Aggregate Purchase Price column includes amounts previously paid on January 20, 1998. CERTIFICATE OF INCORPORATION OF MERCURY ACQUISITION CORPORATION * * * * * FIRST: The name of the Corporation is Mercury Acquisition Corporation. SECOND: The address of its registered office in the State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Delaware 19805. The name of its registered agent at such address is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended ("Delaware Law"). FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 45,000,000 consisting of 30,000,000 shares of Common Stock, par value $0.01 per share (the "Common Stock") and 15,000,000 shares of Preferred Stock, par value $0.01 per share (the "Preferred Stock"). The Board of Directors is hereby empowered to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by the Delaware Law. FIFTH: The name and mailing address of the incorporator are: Name Mailing Address - ------------------------------- ----------------------------- DeAnn C. Fairfield 450 Lexington Avenue New York, New York 10017 The power of the incorporator as such shall terminate upon the filing of this Certificate of Incorporation. SIXTH: The Names and mailing addresses of the persons who are to serve as directors until the first annual meeting of stockholders or until their successors are elected and qualified are: Name Mailing Address - ------------------------------- ----------------------------- Peter T. Grauer 277 Park Avenue New York, NY 10172 William F. Dawson, Jr. 277 Park Avenue New York, NY 10172 SEVENTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation. EIGHTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide. NINTH: (1) A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law. (2)(a) Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this ARTICLE NINTH shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this ARTICLE NINTH shall be a contract right. (b) The Corporation may, by action of its Board of Directors, provide indemnification to such of the officers, employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law. (3) The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under Delaware Law. (4) The rights and authority conferred in this ARTICLE NINTH shall not be exclusive of any other right which any person may otherwise have or hereafter acquire. (5) Neither the amendment nor repeal of this ARTICLE NINTH, nor the adoption of any provision of this Certificate of Incorporation or the bylaws of the Corporation, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall eliminate or reduce the effect of this ARTICLE NINTH in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification. TENTH: The Corporation reserves the right to amend this Certificate of Incorporation in any manner permitted by Delaware Law and, with the sole exception of those rights and powers conferred under the above ARTICLE NINTH, all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power. IN WITNESS WHEREOF, I have hereunto signed my name this 16th day of January, 1998. /s/ DeAnn C. Fairfield -------------------------------- DeAnn C. Fairfield CROSS-REFERENCE SHEET Article of Certificate Section of the General Corporation Law of the of Incorporation State of Delaware ("GCL") - -------------------------- --------------------------------------------- First(1) 102(a)(1) Second(1) 102(a)(2); see also 131 Third(1) 102(a)(3) Fourth(1) 102(a)(4); see also 151(a) Fifth(1) 102(a)(5) and 102(a)(6) Sixth(1) 102(a)(6) Seventh(1) 109(a) Eighth(2) 211(e) Ninth Section (1) 102(b)(7) Section (2) 145 Section (3) 145(g) Section (4) 145(f) Section (5) See 102(b)(1) Tenth 241 and 242 - ---------- (1) Denotes matters that are required to be included in the certificate of incorporation by the GCL. (2) Denotes articles of the certificate of incorporation which alter the position that would otherwise prevail under the GCL. EXHIBIT B Preferred Stock CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF 13% SENIOR EXCHANGEABLE PREFERRED STOCK DUE 2010 of MERCURY ACQUISITION CORPORATION Pursuant to Section 151 of the General Corporation Law of the State of Delaware We, the undersigned, Peter T. Grauer, President and William F. Dawson, Jr., Secretary, of Mercury Acquisition Corporation, a Delaware corporation (hereinafter called the "Corporation"), pursuant to the provisions of Sections 103 and 151 of the General Corporation Law of the State of Delaware, do hereby make this Certificate of Designations and do hereby state and certify that pursuant to the authority expressly vested in the Board of Directors of the Corporation by the Certificate of Incorporation, the Board of Directors duly adopted the following resolution: RESOLVED, that, pursuant to Article Fourth of the Certificate of Incorporation (which authorizes 15,000,000 shares of preferred stock, $0.01 par value ("Preferred Stock"), of which no shares of Preferred Stock are currently issued and outstanding), the Board of Directors hereby fixes the powers, designations, preferences and relative, participating, optional and other special rights, and the qualifications, limitations and restrictions, of a series of Preferred Stock. RESOLVED, that each share of such series of Preferred Stock shall rank equally in all respects and shall be subject to the following provisions: (1) Number and Designation. 2,000,000 shares of the Preferred Stock of the Corporation shall be designated as 13% Senior Exchangeable Preferred Stock Due 2010 (the "Senior Preferred Stock"). (2) Rank. The Senior Preferred Stock shall, with respect to dividend rights and rights on liquidation, dissolution and winding up, rank prior to all classes of or series of common stock of the Corporation, including the Corporation's common stock, par value $0.01 per share ("Common Stock"), and each other class of capital stock of the Corporation, the terms of which provide that such class shall rank junior to the Senior Preferred Stock or the terms of which do not specify any rank relative to the Senior Preferred Stock. All equity securities of the Corporation to which the Senior Preferred Stock ranks prior (whether with respect to dividends or upon liquidation, dissolution, winding up or otherwise), including the Common Stock, are collectively referred to herein as the "Junior Securities." All equity securities of the Corporation with which the Senior Preferred Stock ranks on a parity (whether with respect to dividends or upon liquidation, dissolution or winding up) are collectively referred to herein as the "Parity Securities." The respective definitions of Junior Securities and Parity Securities shall also include any rights or options exercisable for or convertible into any of the Junior Securities and Parity Securities, as the case may be. The Senior Preferred Stock shall be subject to the creation of Junior Securities. (3) Dividends. (a) (i) The holders of shares of Senior Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate equal to the greater of (x) 13% per annum (computed on the basis of a 360 day year) or (y) the stated rate of interest per annum payable on the Senior Subordinated Notes due 2008 of Thermadyne Inc. plus 300 basis points (the "Dividend Rate") on the Liquidation Value of each share of Senior Preferred Stock on and as of the most recent Dividend Payment Date (as defined below). In the event the Corporation is unable or shall fail to discharge its obligation to redeem all outstanding shares of Senior Preferred Stock pursuant to paragraph 5(c) or 5(d) hereof, the Dividend Rate shall increase by .25 percent per quarter (each, a "Default Dividend") for each quarter or portion thereof following the date on which such redemption was required to be made until cured, provided that the aggregate increase shall not exceed 5%. Such dividends shall be payable in the manner set forth below in Sections 3(a)(ii) and (iii) quarterly on March 31, June 30, September 30, and December 31 of each year (unless such day is not a business day, in which event on the next succeeding business day) (each of such dates being a "Dividend Payment Date" and each such quarterly period being a "Dividend Period"). Such dividends shall be cumulative from the date of issue, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends. (ii) Prior to the fifth anniversary of the issuance of the Senior Preferred Stock (the "Cash Pay Date"), dividends shall not be payable in cash to holders of shares of Senior Preferred Stock but shall, subject to Section 3(b) hereof, accrete to the Liquidation Value in accordance with Section 4(a) hereof. (iii) Following the Cash Pay Date, each such dividend shall be payable in cash on the Liquidation Value per share of the Senior Preferred Stock, in equal quarterly amounts (to which the Default Dividend, if any, shall be added), to the holders of record of shares of the Senior Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such record dates, not more than 60 days or less than 10 days preceding the payment dates thereof, as shall be fixed by the Board of Directors. Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date, to holders of record on such date, not more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. (b) At the written request of the holders of a majority of the shares of Senior Preferred Stock, the Corporation shall, commencing on the first Dividend Payment Date after such request and ending on the Cash Pay Date, be required to pay all dividends on shares of Senior Preferred Stock by the issuance of additional shares of Senior Preferred Stock ("Additional Shares"). The Additional Shares shall be identical to all other shares of Senior Preferred Stock, except as set forth in Section 4. For the purposes of determining the number of Additional Shares to be issued as dividends pursuant to this Paragraph (b), such Additional Shares shall be valued at their Applicable Liquidation Value as provided in Section 4(c). (c) Holders of shares of Senior Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the cumulative dividends, as herein provided, on the Senior Preferred Stock. Except as provided in this Section 3, no interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Senior Preferred Stock that may be in arrears. (d) So long as any shares of the Senior Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall be declared or paid or set apart for payment on Parity Securities, for any period unless (to the extent such dividends are payable in cash) full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Senior Preferred Stock for all Dividend Periods terminating on or prior to the date of payment of the dividend on such class or series of Parity Securities. When (to the extent such dividends are payable in cash) dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon shares of the Senior Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall (in each case, to the extent payable in cash) be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Senior Preferred Stock and accumulated and unpaid on such Parity Securities. (e) So long as any shares of the Senior Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) (all such dividends, distributions, redemptions or purchases being hereinafter referred to as a "Junior Securities Distribution") for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares of the Senior Preferred Stock and any other Parity Securities shall (to the extent payable in cash) have been paid or set apart for payment for all past Dividend Periods with respect to the Senior Preferred Stock and all past dividend periods with respect to such Parity Securities and (ii) (to the extent payable in cash) sufficient funds shall have been paid or set apart for the payment of the dividend for the current Dividend Period with respect to the Senior Preferred Stock and the current dividend period with respect to such Parity Securities. (4) Liquidation Preference. (a) In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, before any payment or distribution of the assets of the Corporation (whether capital or surplus) shall be made to or set apart for the holders of Junior Securities, the holders of the shares of Senior Preferred Stock shall be entitled to receive an amount equal to the Liquidation Value of such share plus any accrued and unpaid cash dividends to the date of distribution. "Liquidation Value" on any date means, with respect to (x) any share of Senior Preferred Stock other than any Additional Shares, the sum of (1) $25.00 per share and (2) the aggregate of all dividends accreted on such share until the most recent Dividend Payment Date upon which an accretion to Liquidation Value has occurred (or if such date is a Dividend Payment Date upon which an accretion to Liquidation Value has occurred, such date), provided that in the event of an actual liquidation, dissolution or winding up of the Corporation or the redemption of any shares of Senior Preferred Stock pursuant to Section 5 hereunder, the amount referred to in (2) shall be calculated by including dividends accreting to the actual date of such liquidation, dissolution or winding up or the redemption date, as the case may be, rather than the Dividend Payment Date referred to above and provided further that in no event will dividends accrete beyond the earlier of (i) the Cash Pay Date and (ii) the most recent Dividend Payment Date prior to the Dividend Payment Date on which dividends on the Senior Preferred Stock are payable in Additional Shares and (y) any Additional Share, the Applicable Liquidation Value. All accretions to Liquidation Value will be calculated using compounding on a quarterly basis. Except as provided in the preceding sentences, holders of shares of Senior Preferred Stock shall not be entitled to any distribution in the event of liquidation, dissolution or winding up of the affairs of the Corporation. If, upon any liquidation, dissolution or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of the shares of Senior Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any Parity Securities, then such assets, or the proceeds thereof, shall be distributed among the holders of shares of Senior Preferred Stock and any such other Parity Securities ratably in accordance with the respective amounts that would be payable on such shares of Senior Preferred Stock and any such other stock if all amounts payable thereon were paid in full. For the purposes of this paragraph (4), (i) a consolidation or merger of the Corporation with one or more corporations, or (ii) a sale or transfer of all or substantially all of the Corporation's assets, shall not be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, of the Corporation. (b) Subject to the rights of the holders of any Parity Securities, after payment shall have been made in full to the holders of the Senior Preferred Stock, as provided in this paragraph (4), any other series or class or classes of Junior Securities shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Senior Preferred Stock shall not be entitled to share therein. (c) The Applicable Liquidation Value of any Additional Shares shall be the Liquidation Value of Senior Preferred Stock outstanding immediately prior to the first Dividend Payment Date occurring after a request for payment in Additional Shares has been made in accordance with Section 3(b). (5) Redemption. (a) Redemption Upon Consummation of Public Offering. The Corporation may, at its option, to the extent it shall have funds legally available for such payment, redeem, prior to [May 15], 2001, in whole but not in part, shares of Senior Preferred Stock, at a redemption price per share equal to 113% of the Liquidation Value, in cash, plus accrued and unpaid cash dividends on such shares to the date fixed for redemption, without interest, provided that the Corporation shall not redeem any shares of Senior Preferred Stock pursuant to this Paragraph 5(a) unless (i) prior to such redemption a Public Offering shall have been consummated, and (ii) the aggregate redemption price of the shares of Senior Preferred Stock redeemed pursuant to this Section 5(a) does not exceed the net proceeds received by the Corporation in such Initial Public Offering. "Public Offering" shall mean any underwritten public offering of Common Stock pursuant to an effective registration statement under the Securities Act of 1933, as amended, and shall, in addition, for the purposes of Section 5(a) hereof, include any sale, pursuant to such an underwritten registered public offering, following the Closing Date of any common stock by any affiliate of the Corporation, the net proceeds of which are contributed or loaned to the Corporation in such a manner that such proceeds may lawfully be used for the redemption of the Senior Preferred Stock. "Closing Date" shall have the meaning ascribed to such term in the Investors' Agreement. "Investors' Agreement" means the Investors' Agreement executed in May, 1998 among Thermadyne Holdings Corporation, DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding, Inc., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ EAB Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ ESC II, L.P., (collectively, the "DLJMB Funds"), and certain other stockholders listed on the signature pages thereof. (b) Redemption At the Option of the Corporation. On and after [May 15], 2003, to the extent the Corporation shall have funds legally available for such payment, the Corporation may, at its option, redeem shares of Senior Preferred Stock, at any time in whole but not in part, at redemption prices per share in cash set forth in the table below, together with accrued and unpaid cash dividends thereon to the date fixed for redemption, without interest: Year Beginning [May 15] Percentage of Liquidation Value -------------- 2003 106.500% 2004 104.333 2005 102.167 2006 100.000 (c) Redemption In the Event of a Change of Control. In the event of a Change of Control, the Corporation shall, to the extent it shall have funds legally available for such payment, offer to redeem all of the shares of Senior Preferred Stock then outstanding, and shall redeem the shares of Senior Preferred Stock of any holder of such shares that shall consent to such redemption, upon a date no later than 30 days following the Change in Control, at a redemption price per share equal to 101% of the Liquidation Value, in cash, plus accrued and unpaid cash dividends thereon to the date fixed for redemption, without interest. "Change of Control" means such time as: (a) a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended), other than any person or group comprised solely of the Initial Investors, has become the beneficial owner, by way of merger, consolidation or otherwise, of 30% or more of the voting power of all classes of voting securities of the Corporation, and such person or group has become the beneficial owner of a greater percentage of the voting power of all classes of voting securities of the Corporation than that beneficially owned by the Initial Investors; or (b) a sale or transfer of all or substantially all of the assets of the Corporation to any person or group (other than any group consisting solely of the Initial Investors or their affiliates) has been consummated; or (c) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Corporation (together with any new directors whose election was approved by a vote of a majority of the directors then still in office, who either were directors at the beginning of such period or whose election or nomination for the election was previously so approved) cease for any reason to constitute a majority of the directors of the Corporation, then in office. "Initial Investors" means the Stockholders (determined as of the issuance of the Preferred Stock) and their Permitted Transferees, each as defined in the Investors' Agreement. (d) Mandatory Redemption. To the extent the Corporation shall have funds legally available for such payment, on [May 15], 2010, if any shares of the Senior Preferred Stock shall be outstanding, the Corporation shall redeem all outstanding shares of the Senior Preferred Stock, at a redemption price equal to the aggregate Liquidation Value, in cash, together with any accrued and unpaid cash dividends thereon to the date fixed for redemption, without interest. (e) Status of Redeemed Shares. Shares of Senior Preferred Stock which have been issued and reacquired in any manner, including shares purchased or redeemed, shall (upon compliance with any applicable provisions of the laws of the State of Delaware) have the status of authorized and unissued shares of the class of Preferred Stock undesignated as to series and may be redesignated and reissued as part of any series of the Preferred Stock; provided that no such issued and reacquired shares of Senior Preferred Stock shall be reissued or sold as Senior Preferred Stock. (f) Failure to Redeem. If the Corporation is unable or shall fail to discharge its obligation to redeem all outstanding shares of Senior Preferred Stock pursuant to paragraph (5)(c) or 5(d) (each, a "Mandatory Redemption Obligation"), such Mandatory Redemption Obligation shall be discharged as soon as the Corporation is able to discharge such Mandatory Redemption Obligation. If and so long as any Mandatory Redemption Obligation with respect to the Senior Preferred Stock shall not be fully discharged, the Corporation shall not (i) directly or indirectly, redeem, purchase, or otherwise acquire any Parity Security or discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of any Parity Securities (except in connection with a redemption, sinking fund or other similar obligation to be satisfied pro rata with the Senior Preferred Stock) or (ii) in accordance with paragraph 3(e), declare or make any Junior Securities Distribution, or, directly or indirectly, discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of the Junior Securities. (g) Failure to Pay Dividends. Notwithstanding the foregoing provisions of this paragraph (5), unless full cumulative cash dividends (whether or not declared) on all outstanding shares of Senior Preferred Stock shall have been paid or contemporaneously are declared and paid or set apart for payment for all dividend periods terminating on or prior to the applicable redemption date, none of the shares of Senior Preferred Stock shall be redeemed, and no sum shall be set aside for such redemption, unless shares of Senior Preferred Stock are redeemed pro rata. (6) Procedure for Redemption. (a) In the event the Corporation shall redeem shares of Senior Preferred Stock pursuant to Sections 5(a), (b) or (d), notice of such redemption shall be given by first class mail, postage prepaid, mailed not less than 30 days nor more than 60 days prior to the redemption date, to each holder of record of the shares to be redeemed at such holder's address as the same appears on the stock register of the Corporation; provided that neither the failure to give such notice nor any defect therein shall affect the validity of the giving of notice for the redemption of any share of Senior Preferred Stock to be redeemed except as to the holder to whom the Corporation has failed to give said notice or except as to the holder whose notice was defective. Each such notice shall state: (i) the redemption date; (ii) the number of shares of Senior Preferred Stock to be redeemed; (iii) the redemption price; (iv) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date. (c) In the case of any redemption pursuant to Sections 5(a), (b) or (d) hereof, notice having been mailed as provided in Section 6(b) hereof, from and after the redemption date (unless default shall be made by the Corporation in providing money for the payment of the redemption price of the shares called for redemption), dividends on the shares of Senior Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such share shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. (d) In the case of a redemption pursuant to Section 5(c) hereof, notice of such redemption shall be given by first class mail, postage prepaid, mailed not more than 10 days following the occurrence of the Change of Control and not less than 20 days prior to the redemption date, to each holder of record of the shares to be redeemed at such holder's address as the same appears on the stock register of the Corporation; provided that neither the failure to give such notice nor any defect therein shall affect the validity of the giving of notice for the redemption of any share of Senior Preferred Stock to be redeemed except as to the holder to whom the Corporation has failed to give said notice or except as to the holder whose notice was defective. Each such notice shall state: (i) that a Change of Control has occurred; (ii) the redemption date; (iii) the redemption price; (iv) that such holder may elect to cause the Corporation to redeem all or any of the shares of Senior Preferred Stock held by such holder; (v) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (vi) that dividends on the shares the holder elects to cause the Corporation to redeem will cease to accrue on such redemption date. Upon receipt of such notice, the holder shall, within 20 days of receipt thereof, return such notice to the Corporation indicating the number of shares of Senior Preferred Stock such holder shall elect to cause the Corporation to redeem, if any. (e) In the case of a redemption pursuant to Section 5(c) hereof, notice having been mailed as provided in Section 6(d) hereof, from and after the redemption date (unless default shall be made by the Corporation in providing money for the payment of the redemption price of the shares called for redemption), dividends on such shares of Senior Preferred Stock as the holder elects to cause the Corporation to redeem shall cease to accrue, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such share shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. (7) Exchange. (a) Subject to the provisions of this paragraph (7) the Corporation may, at its option, at any time and from time to time on any Dividend Payment Date, exchange, to the extent it is legally permitted to do so, all, but not less than all, outstanding shares (and fractional shares) of Senior Preferred Stock, for Exchange Debentures, provided that (i) on or prior to the date of exchange the Corporation shall have paid to or declared and set aside for payment to the holders of outstanding shares of Senior Preferred Stock all accrued and unpaid cash dividends on shares of Senior Preferred Stock through the exchange date in accordance with the next succeeding paragraph; (ii) no event of default under the indenture (as defined in such indenture) governing the Exchange Debentures shall have occurred and be continuing; and (iii) no shares of Senior Preferred Stock are held on such date by the DLJMB Funds or any of their Affiliates, or any of their Permitted Transferees. The principal amount of Exchange Debentures deliverable upon exchange of a share of Senior Preferred Stock, adjusted as hereinafter provided, shall be determined in accordance with the Exchange Ratio (as defined below). Cash dividends on any shares of Senior Preferred Stock exchanged for Exchange Debentures which have accrued but have not been paid as of the date of exchange shall be paid in cash. In no event shall the Corporation issue Exchange Debentures in denominations other than $1,000 or in an integral multiple thereof. Cash will be paid in lieu of any such fraction of an Exchange Debenture which would otherwise have been issued (which shall be determined with respect to the aggregate principal amount of Exchange Debentures to be issued to a holder upon any such exchange). Interest will accrue on the Exchange Debentures from the date of exchange. Prior to effecting any exchange hereunder, the Corporation shall appoint a trustee to serve in the capacity contemplated by an indenture between the Corporation and such trustee, containing customary terms and conditions. The Exchange Ratio shall be, as of any Dividend Payment Date, $1.00 (or fraction thereof) of principal amount of Exchange Debenture for each $1.00 of (i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if any, per share of Senior Preferred Stock held by a holder on the applicable exchange date. "Affiliates" shall have the meaning ascribed such term in the Investors' Agreement. "Exchange Debentures" means 13% Subordinated Exchange Debentures due 2010 of the Corporation, to be issued pursuant to an indenture between the Corporation and a trustee, containing customary terms and conditions, in accordance with the Term Sheet attached as Annex A hereto. "Permitted Transferees" shall have the meaning ascribed to such term in the Investors' Agreement. (b) Procedure for Exchange. (i) In the event the Corporation shall exchange shares of Senior Preferred Stock, notice of such exchange shall be given by first class mail, postage prepaid, mailed not less than 30 days nor more than 60 days prior to the exchange date, to each holder of record of the shares to be exchanged at such holder's address as the same appears on the stock register of the Corporation; provided that neither the failure to give such notice nor any defect therein shall affect the validity of the giving of notice for the exchange of any share of Senior Preferred Stock to be exchanged except as to the holder to whom the Corporation has failed to give said notice or except as to the holder whose notice was defective. Each such notice shall state: (A) the exchange date; (B) the number of shares of Senior Preferred Stock to be exchanged and, if fewer than all the shares held by such holder are to be exchanged, the number of shares to be exchanged from such holder; (C) the Exchange Ratio; (D) the place or places where certificates for such shares are to be exchanged for notes evidencing the Exchange Debentures to be received by the exchanging holder; and (E) that dividends on the shares to be exchanged will cease to accrue on such exchange date. (ii) Prior to giving notice of intention to exchange, the Corporation shall execute and deliver with a bank or trust company selected by the Corporation an indenture containing customary terms and conditions. The Corporation will cause the Exchange Debentures to be authenticated on the Dividend Payment Date on which the exchange is effective, and will pay interest on the Exchange Debentures at the rate and on the dates specified in such indenture from the exchange date. The Corporation will not give notice of its intention to exchange under paragraph 6(b)(i) hereof unless it shall file at the place or places (including a place in the Borough of Manhattan, The City of New York) maintained for such purpose an opinion of counsel (who may be an employee of the Corporation) to the effect that (i) the indenture has been duly authorized, executed and delivered by the Corporation, has been duly qualified under the Trust Indenture Act of 1939 (or that such qualification is not necessary) and constitutes a valid and binding instrument enforceable against the Corporation in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and subject to such other qualifications as are then customarily contained in opinions of counsel experienced in such matters), (ii) the Exchange Debentures have been duly authorized and, when executed and authenticated in accordance with the provisions of the indenture and delivered in exchange for the shares of Preferred Stock, will constitute valid and binding obligations of the Corporation entitled to the benefits of the indenture (subject as aforesaid), (iii) neither the execution nor delivery of the indenture or the Exchange Debentures nor compliance with the terms, conditions or provisions of such instruments will result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or agreement or instrument, known to such counsel, to which the Corporation or any of its subsidiaries is a party or by which it or any of them is bound, or any decree, judgment, order, rule or regulation, known to such counsel, of any court or governmental agency or body having jurisdiction over the Corporation and such subsidiaries or any of their properties, (iv) the Exchange Debentures have been duly registered for such exchange with the Securities and Exchange Commission under a registration statement that has become effective under the Securities Act of 1933 (the "Act") or that the exchange of the Exchange Debentures for the shares of Senior Preferred Stock is exempt from registration under the Act, and (v) the Corporation has sufficient legally available funds for such exchange such that such exchange is permitted under applicable law. (iii) Notice having been mailed as aforesaid, from and after the exchange date (unless default shall be made by the Corporation in issuing Exchange Debentures in exchange for the shares called for exchange), dividends on the shares of Senior Preferred Stock so called for exchange shall cease to accrue, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the Exchange Debentures and any rights such holder, upon the exchange, may have as a holder of the Exchange Debenture) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so exchanged (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such share shall be exchanged by the Corporation for the Exchange Debentures at the Exchange Ratio. In case fewer than all the shares represented by any such certificate are exchanged, a new certificate shall be issued representing the unexchanged shares without cost to the holder thereof. (iv) Each exchange shall be deemed to have been effected immediately after the close of business on the relevant Dividend Payment Date, and the person in whose name or names any Exchange Debentures shall be issuable upon such exchange shall be deemed to have become the holder of record of the Exchange Debentures represented thereby at such time on such Dividend Payment Date. (v) Prior to the delivery of any securities which the Corporation shall be obligated to deliver upon exchange of the Senior Preferred Stock, the Corporation shall comply with all applicable federal and state laws and regulations which require action to be taken by the Corporation. (c) The Corporation will pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of notes evidencing Exchange Debentures on exchange of the Senior Preferred Stock pursuant hereto; provided that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue or delivery of Exchange Debentures in a name other than that of the holder of the Senior Preferred Stock to be exchanged and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid. (8) Voting Rights. (a) The holders of record of shares of Senior Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this paragraph (8), as otherwise provided by law or as provided in the Investors' Agreement. (b) If and whenever (i) four consecutive or six quarterly cash dividends payable on the Senior Preferred Stock have not been paid in full, (ii) for any reason (including the reason that funds are not legally available for a redemption), the Corporation shall have failed to discharge any Mandatory Redemption Obligation (including a redemption in the Event of a Change of Control pursuant to Section 5(c) hereof), (iii) the Corporation shall have failed to provide the notice required by Section 6(d) hereof within the time period specified in such section or (iv) the Corporation shall have failed to comply with Sections 3(d), 3(e) or 8(c) hereof, (1) the number of directors then constituting the Board of Directors shall be increased by two and the holders of a majority of the outstanding shares of Senior Preferred Stock, together with the holders of shares of every other series of preferred stock upon which like rights have been conferred and are exercisable (resulting form either the failure to pay dividends or the failure to redeem) (any such series is referred to as the "Preferred Shares"), voting as a single class regardless of series, shall be entitled to elect the two additional directors to serve on the Board of Directors at any annual meeting of stockholders or special meeting held in place thereof, or at a special meeting of the holders of the Senior Preferred Stock and the Preferred Shares called as hereinafter provided. Whenever (i) all arrears in cash dividends on the Senior Preferred Stock and the Preferred Shares then outstanding shall have been paid and cash dividends thereon for the current quarterly dividend period shall have been paid or declared and set apart for payment, (ii) the Corporation shall have fulfilled its Mandatory Redemption Obligation, (iii) fulfilled its obligation to provide notice as specified in subsection (b)(iii) hereof, or (iv) the Corporation shall have complied with Sections 3(d), 3(e), or 8(c) hereof, as the case may be, then the right of the holders of the Senior Preferred Stock to elect such additional two directors shall cease (but subject always to the same provisions for the vesting of such voting rights in the case of any similar future (i) arrearage in six consecutive quarterly cash dividends, (ii) failure to fulfill any Mandatory Redemption Obligation, (iii) failure to fulfill the obligation to provide the notice required by Section 6(d) hereof within the time period specified in such section or (iv) failure to comply with Sections 3(d), 3(e), or 8(c)) and the terms of office of all persons elected as directors by the holders of the Senior Preferred Stock shall forthwith terminate and the number of the Board of Directors shall be reduced accordingly. At any time after such voting power shall have been so vested in the holders of shares of Senior Preferred Stock and the Preferred Shares, the secretary of the Corporation may, and upon the written request of any holder of Senior Preferred Stock (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of the Senior Preferred Stock and of the Preferred Shares for the election of the two directors to be elected by them as herein provided, such call to be made by notice similar to that provided in the Bylaws of the Corporation for a special meeting of the stockholders or as required by law. If any such special meeting required to be called as above provided shall not be called by the secretary within 20 days after receipt of any such request, then any holder of shares of Senior Preferred Stock may call such meeting, upon the notice above provided, and for that purpose shall have access to the stock books of the Corporation. The directors elected at any such special meeting shall hold office until the next annual meeting of the stockholders or special meeting held in lieu thereof if such office shall not have previously terminated as above provided. If any vacancy shall occur among the directors elected by the holders of the Senior Preferred Stock and the Preferred Shares, a successor shall be elected by the Board of Directors, upon the nomination of the then-remaining director elected by the holders of the Senior Preferred Stock and the Preferred Shares or the successor of such remaining director, to serve until the next annual meeting of the stockholders or special meeting held in place thereof if such office shall not have previously terminated as provided above. (c) Without the written consent of a majority of the outstanding shares of Senior Preferred Stock or the vote of holders of a majority of the outstanding shares of Senior Preferred Stock at a meeting of the holders of Senior Preferred Stock called for such purpose, the Corporation will not (i) amend, alter or repeal any provision of the Certificate of Incorporation (by merger or otherwise) so as to adversely affect the preferences, rights or powers of the Senior Preferred Stock; provided that any such amendment that decreases the dividend payable on or the Liquidation Value of the Senior Preferred Stock shall require the affirmative vote of holders of each share of Senior Preferred Stock at a meeting of holders of Senior Preferred Stock called for such purpose or written consent of the holder of each share of Senior Preferred Stock; or (ii) create, authorize or issue any class of stock ranking prior to, or on a parity with, the Senior Preferred Stock with respect to dividends or upon liquidation, dissolution, winding up or otherwise, or increase the authorized number of shares of any such class or series, or reclassify any authorized stock of the Corporation into any such prior or parity shares or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such prior or parity shares, except that the Corporation may, without such approval, create authorize and issue Parity Securities for the purpose of utilizing the proceeds from the issuance of such Parity Securities for the redemption or repurchase of all outstanding shares of Senior Preferred Stock in accordance with the terms hereof or of the Investors' Agreement.. (d) In exercising the voting rights set forth in this paragraph (8), each share of Senior Preferred Stock shall have one vote per share, except that when any other series of preferred stock shall have the right to vote with the Senior Preferred Stock as a single class on any matter, then the Senior Preferred Stock and such other series shall have with respect to such matters one vote per $25 of Liquidation Value or other liquidation preference. Except as otherwise required by applicable law or as set forth herein, the shares of Senior Preferred Stock shall not have any relative, participating, optional or other special voting rights and powers and the consent of the holders thereof shall not be required for the taking of any corporate action. (9) Reports. So long as any of the Senior Preferred Stock is outstanding, the Corporation will furnish the holders thereof with the quarterly and annual financial reports that the Corporation is required to file with the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 or, in the event the Corporation is not required to file such reports, reports containing the same information as would be required in such reports. (10) General Provisions. (a)The term "Person" as used herein means any corporation, limited liability company, partnership, trust, organization, association, other entity or individual. (b) The term "outstanding", when used with reference to shares of stock, shall mean issued shares, excluding shares held by the Corporation or a subsidiary. (c) The headings of the paragraphs, subparagraphs, clauses and subclauses used herein are for convenience of reference only and shall not define, limit or affect any of the provisions hereof. (d) Each holder of Senior Preferred Stock, by acceptance thereof, acknowledges and agrees that payments of dividends, interest, premium and principal on, and exchange, redemption and repurchase of, such securities by the Corporation are subject to restrictions on the Corporation contained in certain credit and financing agreements. IN WITNESS WHEREOF, Mercury Acquisition Corporation has caused this Certificate of Designations to be signed and attested by the undersigned this __th day of _____, 1998. Mercury Acquisition Corporation By ------------------------------- Name: Peter T. Grauer Title: President ATTEST: - ----------------------------------- Name: William F. Dawson, Jr. Title: Secretary ANNEX A ------- SUMMARY OF TERMS OF INDENTURE FOR 13% SUBORDINATED EXCHANGE DEBENTURES Parties: Mercury Acquisition Corporation (the "Corporation") and [ ], as trustee. Issue: 13% Exchange Debentures (the "Exchange Debentures") to be issued by the Corporation, at its option, in exchange for any or all the outstanding shares of 13% Senior Exchangeable Preferred Stock due 2010 (the "Senior Preferred Stock") issued on or about May 15, 1998 to DLJ Merchant Banking Partners II, L.P. and certain of its affiliates (the "DLJ Entities"). Maturity: May 15, 2010. Interest: 13% annual rate, payable semi-annually. Through the tenth semi-annual interest payment period, quarterly interest will accrete on a compound basis (i.e. non-cash pay) and increase the face amount of the Exchange Debentures, thereafter interest will be payable in cash. Ranking: The Exchange Debentures will rank senior to all other subordinated debt, preferred stock and common equity of the Corporation. Optional Redemption: The Exchange Debentures will be redeemable at any time after May 15, 2003 at the option of the Corporation, in whole or in part, at the same redemption prices set forth in the desigination of the Senior Preferred Stock set forth in Article 4 of the Restated Certificate of Incorporation of the Surviving Corporation. Change of Control In the event of a Change of Control of the Repurchase Right: Corporation each holder of the Exchange Debentures will have the right to require the Corporation to repurchase all or any part of such holder's Exchange Debentures at a purchase price of 101% of the sum of the accreted value thereof plus accrued and unpaid cash interest, if any, to the repurchase date. Covenants: The Debentures will contain covenants that are substantially the same as the covenants contained in the Indenture of the Senior Discount Debentures due 2008 of the Corporation and will limit, among other things, the ability of the Corporation and its subsidiaries (i) to incur additional indebtedness, (ii) to pay dividends and make other distributions on its capital stock, (iii) to repurchase its capital stock or warrants, options or other rights to acquire shares of its capital stock or any Indebtedness subordinated to the Exchange Debentures, (iv) to make certain other Restricted Payments, (v) to make certain investments or asset sales, (vi) to engage in transactions with affiliates, (vii) to create liens, (viii) to permit "layering" of indebtedness and (ix) to merge or consolidate or transfer all or substantially all of its assets. EXHIBIT C Form of Warrant MERCURY ACQUISITION CORPORATION Class A Warrant for the Purchase of Shares of Common Stock of Mercury Acquisition Corporation ----------------------------------------------- No. ____ Warrant to Purchase ____ Shares 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. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET FORTH IN THE INVESTORS' AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE COMPANY OR ANY SUCCESSOR THERETO. FOR VALUE RECEIVED, MERCURY ACQUISITION CORPORATION, a Delaware corporation (the "Company"), hereby certifies that [HOLDER], 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. (1) 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 other capital stock of the Company that is not preferred as to liquidation or dividends. "Duly Endorsed" means duly endorsed in blank by the Person or Persons in whose name a stock certificate is registered or accompanied by a duly executed stock assignment separate from the certificate with the signature(s) thereon guaranteed by a commercial bank or trust company or a member of a national securities exchange or of the National Association of Securities Dealers, Inc. "Exercise Price" means $0.01 per Warrant Share, such Exercise Price to be adjusted from time to time as provided herein. "Expiration Date" means May 15, 2010 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 for purposes of paragraph (h)(6) hereof. "Investors Agreement" means the Investors Agreement dated as of the date hereof among Thermadyne Holdings Corporation, DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ Funding II, Inc., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P., DLJ ESC II, L.P., DLJ First ESC, L.P., and the stockholders listed on the signature pages thereto. "Person" means an individual, partnership, corporation, limited liability company, trust, joint stock company, association, joint venture, or any 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 25% of the Warrants. "transfer" shall have the meaning assigned to such term in the Investors' Agreement. "Warrants" means the Warrants issued to the subscribers under the Subscription Agreement dated as of the date hereof among the Company and the subscribers listed on the signature pages thereof. (2) Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Investors' 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, including the Warrant Exercise Subscription Form forming a part hereof duly executed by the Holder, together with payment of the applicable Exercise Price, provided however, that in connection with a public offering of the Common Stock, a Holder may deliver the Warrant Exercise Notice, the Warrant Exercise Subscription Form and this Warrant Certificate to the Company simultaneously. 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 non-cash 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 non-cash 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. (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 required pursuant to the Investors' Agreement. (d) RESERVATION OF SHARES. The Company hereby agrees that at all times there shall be reserved 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, except to the extent set forth in the Investors' Agreement. (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)(6)) 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 (i) provides for an increase in the number of shares of Common Stock subject to purchase upon exercise of this Warrant, in inverse proportion to and effective at the same time as such number of shares is increased, but only to the extent that such increase in the number of shares, together with all other such increases after the date hereof, causes the aggregate Exercise Price of all Warrants (without giving effect to any exercise thereof) to be greater than $3,534.28 or (ii) would, but for this provision, reduce the Exercise Price below the par value of the Common Stock. (f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT. (1) This Warrant and the Warrant Shares are subject to the provisions of the Investors' Agreement, including the restrictions on transfer. Each taker and holder of this Warrant Certificate by taking or 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 Investors' Agreement to the extent set forth therein, including the transfer restrictions and the registration rights included therein. (2) Subject to compliance with the transfer restrictions set forth in the Investors' Agreement, 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 canceled. (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 Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing 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, giving effect to paragraph (h)(9), 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 issue or sell any Common Stock (other than Common Stock issued (I) upon exercise of the Warrants, (II) pursuant to any Common Stock related employee compensation plan of the Company approved by the Company's Board of Directors, or (II) upon exercise or conversion of any security the issuance of which caused an adjustment under paragraphs (h)(3) or (h)(4) hereof), the Exercise Price to be in effect after such issuance or sale shall be determined by multiplying the Exercise Price in effect immediately prior to such issuance or sale by a fraction, the numerator of which shall be the sum of (x) the number of shares of Common Stock outstanding immediately prior to the time of such issuance or sale multiplied by the Current Market Price Per Common Share immediately prior to such issuance or sale and (y) the aggregate consideration, if any, to be received by the Company upon such issuance or sale, and the denominator of which shall be the product of the aggregate number of shares of Common Stock outstanding immediately after such issuance or sale and the Current Market Price Per Common Share immediately prior to such issuance or sale but in no event will such fraction exceed 1. In case any portion of the consideration to be received by the Company shall be in a form other than cash, the fair market value of such noncash consideration shall be utilized in the foregoing computation. Such fair market value 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 consideration other than cash to be received by the Company and furnished with a description of the consideration and the fair market value thereof, as determined by the Board of Directors. (3) In case the Company shall fix a record date for the issuance of rights, options or warrants to the holders of its Common Stock or other securities entitling such holders to subscribe for or purchase for a period expiring within 60 days of such record date shares of Common Stock (or securities convertible into shares of Common Stock) at a price per share of Common Stock (or having a conversion price per share of Common Stock, if a security convertible into shares of Common Stock) less than the Current Market Price Per Common Share on such record date, the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants (or conversion of such convertible securities) shall be deemed to have been issued and outstanding as of such record date and the Exercise Price shall be adjusted pursuant to paragraph (h)(2) hereof, as though such maximum number of shares of Common Stock had been so issued for an aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such shares of Common Stock. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in paragraph (h)(2) hereof. Such adjustment shall be made successively whenever such record date is fixed; and in the event that such rights, options or warrants are not so issued or expire unexercised, or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options or warrants are entitled (other than pursuant to adjustment provisions therein which are no more favorable in their entirety than those contained in this paragraph (h)), 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, in the former event, or the Exercise Price which would then be in effect if such holder had initially been entitled to such changed number of shares of Common Stock, in the latter event. (4) In case the Company shall sell or issue rights, options (other than options issued pursuant to a plan described in clause II of paragraph (h)(2)) or warrants entitling the holders thereof to subscribe for or purchase Common Stock (or securities convertible into shares of Common Stock) or shall issue convertible securities, and the price per share of Common Stock of such rights, options, warrants or convertible securities (including, in the case of rights, options or warrants, the price at which they may be exercised) is less than the Current Market Price Per Common Share, the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants or upon conversion of such convertible securities shall be deemed to have been issued and outstanding as of the date of such sale or issuance, and the Exercise Price shall be adjusted pursuant to paragraph (h)(2) hereof as though such maximum number of shares of Common Stock had been so issued for an aggregate consideration equal to the aggregate consideration paid for such rights, options, warrants or convertible securities and the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such shares of Common Stock. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in paragraph (h)(2) hereof. Such adjustment shall be made successively whenever such rights, options, warrants or convertible securities are issued; and in the event that such rights, options or warrants expire unexercised, or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options, warrants or convertible securities are entitled (other than pursuant to adjustment provisions therein which are no more favorable in their entirety than those contained in this paragraph (h)), the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such rights, options, warrants or convertible securities had not been issued, in the former event, or the Exercise Price which would then be in effect if such holders had initially been entitled to such changed number of shares of Common Stock, in the latter event. No adjustment of the Exercise Price shall be made pursuant to this paragraph (h)(4) to the extent that the Exercise Price shall have been adjusted pursuant to paragraph (h)(3) upon the setting of any record date relating to such rights, options, warrants or convertible securities and such adjustment fully reflects the number of shares of Common Stock to which the holders of such rights, options, warrants or convertible securities are entitled and the price payable therefor. (5) 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 continuing corporation) of evidences of indebtedness, cash, assets or other property (other than dividends payable in Common Stock or rights, options or warrants referred to in, and for which an adjustment is made pursuant to, paragraph (h)(3) hereof), 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 in paragraph (h)(2) hereof) of the portion of the assets, cash, other property or evidence of indebtedness 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. (6) For the purpose of any computation under paragraph (e) or paragraph (h)(2), (3), (4) or (5) 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, applicable regulatory restrictions or any of the transfer restrictions or other obligations imposed on such shares set forth in the Investors' Agreement. 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 the applicable class of Common Stock as determined by an independent appraiser retained by the Company at its expense and reasonably acceptable to the Principal Holders. 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. (7) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in such price; provided that any adjustments which by reason of this paragraph (h)(7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph (h) shall be made to the nearest one tenth of a cent or to the nearest hundredth of a share, as the case may be. (8) 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. (9) Upon each adjustment of the Exercise Price as a result of the calculations made in paragraphs (h)(1), (2), (3), (4) or (5) 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. (10) The Company shall notify all Holders of the fixing 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. (11) 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 this Secretary or an 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 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. (12) The Holder shall, at its option, be entitled to receive, in lieu of the adjustment pursuant to paragraph (h)(5) 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)(12) 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)(11) 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 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. Notwithstanding the foregoing provisions of this paragraph (i), the treatment of this Warrant in connection with the merger of the Company with and into Thermadyne Holdings Corporation shall be governed by paragraph (n). (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: Mercury Acquisition Corporation c/o DLJ Merchant Banking Partners II, L.P. 277 Park Avenue New York, NY 10172 Telecopy: 212-892-3636 Attention: Peter T. Grauer If to the Holder: [Holder] [Address] [Address] 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. (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 Holder 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. (n) CONVERSION UPON MERGER. Upon the consummation of the merger of the Company with and into Thermadyne Holdings Corporation on the date hereof pursuant to the Plan and Agreement of Merger dated as of January 20, 1998 between the Company and Thermadyne Holdings Corporation, as amended, this Warrant shall automatically and without further action on the part of the Holder constitute a Warrant to acquire shares of common stock of Thermadyne Holdings Corporation on the terms and conditions as are set forth herein. 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 ____ __ , 1998. MERCURY ACQUISITION CORPORATION By ----------------------------------- Name: Title: Acknowledged and Agreed: [HOLDER] By -------------------------- Title: WARRANT EXERCISE NOTICE (To be delivered prior to exercise of the Warrant by execution of the Warrant Exercise Subscription Form) To: Mercury Acquisition Corporation The undersigned hereby notifies you of its intention to exercise the Warrant to purchase shares of Common Stock, par value $0.01 per share, of Mercury Acquisition Corporation. The undersigned intends to exercise the Warrant to purchase __________ shares of Common Stock (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 in cash, certified or official bank or bank cashier's check (or a combination of cash and check) as indicated below. -OR- The undersigned intends to exercise the Warrant to purchase __________ shares of Common Stock (the "Shares") and wishes, in lieu of paying the Exercise Price of $____ per share currently in effect pursuant to the Warrant, to receive that number of shares reduced by a number of shares of Common Stock having an aggregate Fair Market Value (as defined in the Warrant) equal to the aggregate Exercise Price for the Shares. -OR- The undersigned intends to exercise the Warrant to purchase __________ shares of Common Stock (the "Shares") at the Exercise Price of $____ per share currently in effect pursuant to the Warrant, and intends to pay $_____ of the aggregate Exercise Price for the Shares in cash, certified or official bank or bank cashier's check (or a combination of cash and check) as indicated below, and to deliver as payment of $____ of the aggregate Exercise Price that number of shares of Common Stock having an aggregate Fair Market Value (as defined in the Warrant) equal to such non-cash portionof the aggregate Exercise Price for the Shares. -OR- The undersigned intends to exercise the Warrant to purchase __________ shares of Common Stock (the "Shares") at the Exercise Price of $____ per share currently in effect pursuant to the Warrant, and intends to pay $_____ of the aggregate Exercise Price for the Shares in cash, certified or official bank or bank cashier's check (or a combination of cash and check) as indicated below, and to deliver as payment of $____ of the aggregate Exercise Price that number of Warrants which, if exercised, would result in a number of shares of Common Stock having an aggregate Fair Market Value (as defined in the Warrant) equal to such non-cash portionof the aggregate Exercise Price for the Shares. Date: ------------ ---, ----. -------------------------------- (Signature of Owner) -------------------------------- (Street Address) -------------------------------- (City) (State) (Zip Code) Payment: $___________ cash $___________ check ____________ shares of Common Stock having a Fair Market Value of $___________ _____________ Warrants exercisable for shares of Common Stock having a Fair Market Value of $__________ WARRANT EXERCISE NOTICE (To be delivered prior to exercise of the Warrant by execution of the Warrant Exercise Subscription Form) To: Mercury Acquisition Corporation The undersigned irrevocably exercises the Warrant for the purchase of ___________ shares of Common Stock (the "Shares"), par value $0.01 per share, of Mercury Acquisition Corporation (the "Company") at $_____ per Share (the Exercise Price currently in effect pursuant to the Warrant) and herewith makes payment of $___________ (such payment being made in cash or by certified or official bank or bank cashier's check payable to the order of the Company or by any permitted combination of such cash or check), all on the terms and conditions specified in the within Warrant Certificate, surrenders this Warrant Certificate and all right, title and interest therein to the Company and directs that the Shares deliverable upon the exercise of this Warrant be registered or placed in the name and at the address specified below and delivered thereto. -OR- The undersigned irrevocably exercises the Warrant for the purchase of ___________ shares of Common Stock (the "Shares"), par value $0.01 per share, of Mercury Acquisition Corporation (the "Company") at $_____ per Share (the Exercise Price currently in effect pursuant to the Warrant) (provided that in lieu of payment of $_________, the undersigned will receive a number of Shares reduced by a number of shares of Common Stock having an aggregate Fair Market Value (as defined in the Warrant) equal to the aggregate Exercise Price for the Shares), all on the terms and conditions specified in the within Warrant Certificate, surrenders this Warrant Certificate and all right, title and interest therein to the Company and directs that the Shares deliverable upon the exercise of this Warrant be registered or placed in the name and at the address specified below and delivered thereto. -OR- The undersigned irrevocably exercises the Warrant for the purchase __________ shares of Common Stock (the "Shares") at $_______ per Share (the Exercise Price currently in effect pursuant to the Warrant), and herewith makes payment of $_____ of the aggregate Exercise Price for the Shares in cash, certified or official bank or bank cashier's check (or a combination of cash and check), and herewith delivers as payment of $____ of the aggregate Exercise Price that number of shares of Common Stock having an aggregate Fair Market Value (as defined in the Warrant) equal to such non-cash portionof the aggregate Exercise Price for the Shares, all on the terms and conditions specified in the within Warrant Certificate, surrenders this Warrant Certificate and all right, title and interest therein to the Company and directs that the Shares deliverable upon the exercise of this Warrant be registered or placed in the name and at the address specified below and delivered thereto. -OR- The undersigned irrevocably exercises the Warrant for the purchase of __________ shares of Common Stock, par value $0.01 per share, of Mercury Acquisition Corporation (the "Company") at $____ per share (the Exercise Price currently in effect pursuant to the Warrant), and herewith makes payment of $_____ of the aggregate Exercise Price for the Shares in cash, certified or official bank or bank cashier's check (or a combination of cash and check), and herewith delivers as payment of $____ of the aggregate Exercise Price that number of Warrants which, if exercised, would result in a number of shares of Common Stock having an aggregate Fair Market Value (as defined in the Warrant) equal to such non-cash portionof the aggregate Exercise Price for the Shares, all on the terms and conditions specified in the within Warrant Certificate, surrenders this Warrant Certificate and all right, title and interest therein to the Company and directs that the Shares deliverable upon the exercise of this Warrant be registered or placed in the name and at the address specified below and delivered thereto. Date: ------------ ---, ----. -------------------------------- (Signature of Owner) -------------------------------- (Street Address) -------------------------------- (City) (State) (Zip Code) Securities and/or check to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: Any unexercised portion of the Warrant evidenced by the within Warrant Certificate to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and 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 ----------------- EX-6 3 EXHIBIT 6 INVESTORS' AGREEMENT dated as of May 22, 1998 by and among THERMADYNE HOLDINGS CORPORATION DLJ MERCHANT BANKING PARTNERS II, L.P., DLJ MERCHANT BANKING PARTNERS II-A, L.P., DLJ OFFSHORE PARTNERS II, C.V., DLJ DIVERSIFIED PARTNERS, L.P. DLJ DIVERSIFIED PARTNERS -A, L.P., DLJ MILLENNIUM PARTNERS, L.P. DLJ MILLENNIUM PARTNERS-A, L.P. DLJMB FUNDING II, INC., UK INVESTMENT PLAN 1997 PARTNERS, DLJ EAB PARTNERS, L.P., DLJ FIRST ESC, L.P., DLJ ESC II, L.P. and certain other Stockholders named herein TABLE OF CONTENTS Page ---- ARTICLE 1 Definitions Section 1.1. Definitions.............................................2 ARTICLE 2 Corporate Governance Section 2.1. Composition of the Board...............................10 Section 2.2. Removal................................................10 Section 2.3. Vacancies..............................................11 Section 2.4. Meetings...............................................11 Section 2.5. Action by the Board....................................11 Section 2.6. Conflicting Charter or Bylaw Provisions................11 ARTICLE 3 Restrictions on Transfer Section 3.1. General................................................12 Section 3.2. Legends................................................12 Section 3.3. Permitted Transferees..................................13 Section 3.4. Restrictions on Transfers by Management Stockholders...13 ARTICLE 4 Tag-along Rights; Drag-along Rights Section 4.1. Rights to Participate in Transfer......................15 Section 4.2. Right to Compel Participation in Certain Transfers.....16 Section 4.3. Certain Rights.........................................18 ARTICLE 5 Registration Rights Section 5.1. Demand Registration....................................18 Section 5.2. Incidental Registration................................21 Section 5.3. Holdback Agreements....................................23 Section 5.4. Registration Procedures................................23 Section 5.5. Indemnification by the Company.........................26 Section 5.6. Indemnification by Participating Stockholders..........27 Section 5.7. Conduct of Indemnification Proceedings.................28 Section 5.8. Contribution...........................................28 Section 5.9. Participation in Public Offering.......................30 Section 5.10. Other Indemnification..................................30 Section 5.11. Cooperation by the Company.............................30 ARTICLE 6 Miscellaneous Section 6.1. Entire Agreement.......................................31 Section 6.2. Binding Effect; Benefit................................31 Section 6.3. Exclusive Financial and Investment Banking Advisor.....31 Section 6.4. Assignability..........................................31 Section 6.5. Amendment; Waiver; Termination.........................31 Section 6.6. Notices................................................32 Section 6.7. Headings...............................................33 Section 6.8. Counterparts...........................................33 Section 6.9. Applicable Law.........................................33 Section 6.10. Specific Enforcement...................................33 Section 6.11. Consent to Jurisdiction................................33 INVESTORS' AGREEMENT AGREEMENT dated as of May 22, 1998 among (i) Thermadyne Holdings Corporation, a Delaware corporation (the "Company"), (ii) DLJ Merchant Banking Partners II, L.P., a Delaware limited partnership, DLJ Offshore Partners II, C.V. a Netherlands Antilles limited partnership, DLJ Merchant Banking Partners II-A, L.P., a Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware limited partnership, DLJ Diversified Partners-A, L.P., a Delaware limited partnership, DLJ EAB Partners, L.P., a Delaware limited partnership, DLJ Millennium Partners, L.P., a Delaware limited partnership, DLJ Millennium Partners-A, L.P., a Delaware limited partnership, DLJMB Funding II, Inc., a Delaware corporation, UK Investment Plan 1997 Partners, a Delaware partnership, DLJ First ESC, L.P., a Delaware limited partnership and DLJ ESC II, L.P., a Delaware limited partnership, (each of the foregoing, a "DLJ Entity", and collectively, the "DLJ Entities") and (iii) certain other Persons listed on the signature pages hereof (each a "Stockholder" and collectively, the "Management Stockholders"). W I T N E S S E T H: WHEREAS, certain parties hereto have acquired or will be acquiring securities of Mercury Acquisition Corporation, the predecessor by merger to the Company, and/or the Company; WHEREAS, pursuant to the terms of the Merger Agreement (as defined below) Mercury Acquisition Corporation has been merged with and into the Company with the Company as the surviving corporation; WHEREAS, the parties hereto desire to enter into this Agreement to govern certain of their rights, duties and obligations after consummation of the transactions contemplated by the Merger Agreement; NOW, THEREFORE, in consideration of the covenants and agreements contained herein and in the Merger Agreement, the parties hereto agree as follows: ARTICLE 1 Definitions Section 1.1. Definitions. (a) The following terms, as used herein, have the following meanings: "Adverse Person" means any Person whom the Board of Directors of the Company determines is a competitor or a potential competitor of the Company or its subsidiaries. "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 stockholder of the Company shall be deemed an Affiliate of any other stockholder of the Company solely by reason of any investment in the Company. For the purpose of this definition, the term "control" (including with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), when used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Affiliated Employee Benefit Trust" means any trust that is a successor to the assets held by a trust established under an employee benefit plan subject to ERISA or any other trust established directly or indirectly under such plan or any other such plan having the same sponsor. "Aggregate Ownership" means, with respect to any Stockholder or group of Stockholders, and with respect to any class of Company Securities, the total amount of such securities "beneficially owned" (as such term is defined in Rule 13d-3 under the Exchange Act) (without duplication) by such Stockholder or group of Stockholders as of the date of such calculation (but adjusted in accordance with the proviso below), calculated on a Fully Diluted basis and taking into account any stock dividend, stock split or reverse stock split; provided that such amount of securities shall be increased (without duplication) with respect to any Other Stockholder, by any stock appreciation rights, options, warrants (including the Warrants) or other rights to purchase or subscribe for Company Securities of such Other Stockholder as and when such stock appreciation rights, options, warrants or other rights have vested. "Benchmark Securities" means the aggregate number of Common Shares, Preferred Shares or Warrants sold or proposed to be sold by the DLJ Entities (other than to their Permitted Transferees) subsequent to the date hereof until the first to occur of (i) the aggregate number of Common Shares, Preferred Shares or Warrants so sold or proposed to be sold by the DLJ Entities (other than to their Permitted Transferees) equals 25% of the Initial Ownership of Common Stock, Preferred Stock or Warrants of the DLJ Entities and (ii) the aggregate amount in cash (net of any commissions, fees or expenses) collectively received or to be received by the DLJ Entities, without duplication, as a result of the sale subsequent to the date hereof or proposed sale of any such Common Shares, Preferred Shares or Warrants (other than to their Permitted Transferees) shall equal the aggregate amount invested by the DLJ Entities as of such date in Common Shares, Preferred Shares or Warrants. "Board" means the board of directors of the Company. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close. "Bylaws" means the Amended and Restated Bylaws of the Company, as amended from time to time. "Change of Control" means: (a) any "person" (as such term is used in Section 3(a)(9) and 13(d)(3) of the Exchange Act) other than (A) the DLJ Entities and/or their respective Permitted Transferees or (B) any "group" (within the meaning of such Section 13(d)(3)) of which the DLJ Entities constitute a majority (on the basis of ownership interest), acquires, directly or indirectly, by virtue of the consummation of any purchase, merger or other combination, securities of the Company representing more than 51% of the combined voting power of the Company's then outstanding voting securities with respect to matters submitted to a vote of the stockholders generally; or (b) a sale or transfer by the Company or any of its Subsidiaries of substantially all of the consolidated assets of the Company and its Subsidiaries to an entity which is not an Affiliate of the Company prior to such sale or transfer. "Code" means the Internal Revenue Code of 1986, as amended from time to time. "Coinvestment Shares" means Shares of the Company purchased under the Thermadyne Investment Program and designated as Coinvestment Shares. "Committee" means a committee of the Board designated by the Board to administer the Plan and composed of not less than the minimum number of persons from time to time required by Rule 16b-3, each of whom, to the extent necessary to comply with Rule 16b-3 only, is a "Non-Employee Director" within the meaning of Rule 16b-3. Until otherwise determined by the Board, the full Board shall be the Committee under the Plan. "Charter" means the Amended and Restated Certificate of Incorporation of the Company, as amended from time to time. "Closing Date" means May 22, 1998. "Code" means the Internal Revenue Code of 1986, as amended. "Common Stock" means the common stock, par value $0.01 per share, of the Company and any stock into which such Common Stock may thereafter be converted or changed, and "Common Shares" means shares of Common Stock. "Company Securities" means the Common Stock and securities convertible into or exchangeable for Common Stock, Preferred Stock and options, warrants (including the Warrants) or other rights to acquire Common Stock, Preferred Stock or any other equity security issued by the Company. "Drag-Along Portion" means, with respect to any Other Stockholder and any class of Company Securities, the number of such class of Company Securities beneficially owned by such Other Stockholder on a Fully Diluted basis (but without duplication) multiplied by a fraction, the numerator of which is the number of such class of Company Securities proposed to be sold by the DLJ Entities on behalf of the DLJ Entities and the Other Stockholders and the denominator of which is the total number of such class of Company Securities on a Fully Diluted basis beneficially owned by the Stockholders. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Founding Stockholder" means either of Randall E. Curran or James H. Tate. "Fully Diluted" means, with respect to Common Stock and without duplication, all outstanding Shares and all Shares issuable in respect of securities convertible into or exchangeable for Shares, stock appreciation rights, options, warrants (including the Warrants) and other rights to purchase or subscribe for Shares or securities convertible into or exchangeable for Common Stock; provided that, to the extent any of the foregoing stock appreciation rights, options, warrants or other rights to purchase or subscribe for Shares are subject to vesting, the Shares subject to vesting shall be included in the definition of "Fully Diluted" only upon and to the extent of such vesting. "First Public Offering" means the first sale after the date hereof of Common Stock pursuant to an effective registration statement under the Securities Act (other than a registration statement on Form S-8 or any successor form). "Initial Ownership" means, with respect to any Stockholder and any class of Company Securities, the number of shares of such class of Company Securities beneficially owned (and (without duplication) which such Persons have the right to acquire) as of the date hereof, or in the case of any Person that shall become a party to this Agreement on a later date, as of such date, taking into account any stock split, stock dividend, reverse stock split or similar event. "Other Stockholders" means all Stockholders other than the DLJ Entities, and their respective Permitted Transferees. "Permitted Transferee" means: (i) in the case of any DLJ Entity (A) any other DLJ Entity, (B) any general or limited partner of any DLJ Entity (a "DLJ Partner"), and any corporation, partnership, Affiliated Employee Benefit Trust or other entity that is an Affiliate of any DLJ Partner (collectively, the "DLJ Affiliates"), (C) any managing director, general partner, director, limited partner, officer or employee of any DLJ Entity or of any DLJ Affiliate, or the heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of any of the foregoing persons referred to in this clause (C) (collectively, "DLJ Associates"), (D) a trust, the beneficiaries of which, or a corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which, include only DLJ Entities, DLJ Affiliates, DLJ Associates, their spouses or their lineal descendants or (E) a voting trustee for one or more DLJ Entities, DLJ Affiliates or DLJ Associates under the terms of a voting trust designed to conform with the requirements of the Insurance Law of the State of New York; and (ii) in the case of any Other Stockholder (A) any Other Stockholder, (B) a Person to whom Shares are transferred from such Other Stockholder (1) by will or the laws of descent and distribution or (2) by gift without consideration of any kind; provided that, in the case of clause (2), such transferee is the issue or spouse of such Other Stockholder or (C) a trust that is for the exclusive benefit of such Other Stockholder or its Permitted Transferees under (B) above. "Person" means an individual, corporation, partnership, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Preferred Stock" means the 13% senior exchangeable preferred stock, par value $0.01 per share and due 2010 of the Company, and "Preferred Shares" means shares of Preferred Stock. "Pro Rata Portion" means the number of Shares a Stockholder holds (either Purchased Shares or non-Purchased Shares, as the case may be) multiplied by a fraction, the numerator of which is the number of Shares to be sold by the DLJ Entities and their Permitted Transferees in a Public Offering and the denominator of which is the total number of Shares, on a Fully Diluted basis, held in the aggregate by the DLJ Entities and their Permitted Transferees prior to such Public Offering. "Public Offering" means an underwritten public offering of Registrable Securities of the Company pursuant to an effective registration statement under the Securities Act. "Purchased Shares" means those shares of Common Stock purchased by a Management Stockholder on the Closing Date for cash and/or a promissory note contemplated in the Thermadyne Investment Program. "Registrable Securities" means any Shares or Warrants until (i) a registration statement covering such Shares or Warrants has been declared effective by the SEC and such shares have been disposed of pursuant to such effective registration statement, (ii) such Shares or Warrants are sold under circumstances in which all of the applicable conditions of Rule 144 are met or under which they may be sold pursuant to Rule 144(k) or (iii) such Shares or Warrants are otherwise transferred, the Company has delivered a new certificate or other evidence of ownership for such Shares or Warrants not bearing the legend required pursuant to this Agreement and such Shares or Warrants may be resold without subsequent registration under the Securities Act. "Registration Expenses" means (i) all registration and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Shares or Warrants), (iii) printing expenses, (iv) internal expenses of the Company (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), (v) reasonable fees and disbursements of counsel for the Company and customary fees and expenses for independent certified public accountants retained by the Company (including the expenses of any comfort letters or costs associated with the delivery by independent certified public accountants of a comfort letter or comfort letters requested pursuant to Section 5.4(h)), (vi) the reasonable fees and expenses of any special experts retained by the Company in connection with such registration, (vii) reasonable fees and expenses of one counsel for the Stockholders participating in the offering selected (A) by the DLJ Entities, in the case of any offering in which such entities participate, or (B) in any other case, by the Other Stockholders holding the majority of Shares or Warrants to be sold for the account of all Other Stockholders in the offering, (viii) fees and expenses in connection with any review of underwriting arrangements by the National Association of Securities Dealers, Inc. (the "NASD") including fees and expenses of any "qualified independent underwriter" and (ix) fees and disbursements of underwriters customarily paid by issuers or sellers of securities; but shall not include any underwriting fees, discounts or commissions attributable to the sale of Registrable Securities, or any out-of-pocket expenses (except as set forth in clause (vii) above) of the Stockholders (or the agents who manage their accounts) or any fees and expenses of underwriter's counsel. "Restriction Termination Date" means the earlier to occur of (a) the second anniversary of the First Public Offering and (b) the fifth anniversary of the Closing Date. "Rule 144" means Rule 144 and Rule 144A (or any successor provisions) under the Securities Act. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended. "Shares" means shares of Common Stock and shares of Preferred Stock. "Stockholder" means each Person (other than the Company) who shall be a party to or bound by this Agreement, whether in connection with the execution and delivery hereof as of the date hereof, pursuant to Section 6.4, or otherwise, so long as such Person shall (i) beneficially own any Company Securities, or (ii) have any stock appreciation rights, options, warrants or other rights to purchase or subscribe for Company Securities. "Subject Securities" means any Company Securities beneficially owned by the Management Stockholders. "Tag-Along Portion" means (i) where the Selling Person is selling Preferred Stock, the number of shares of Preferred Stock held by the Tagging Person or the Selling Person, as the case may be, multiplied by a fraction, the numerator of which is the number of shares of Preferred Stock proposed to be sold in the Tag-Along Sale pursuant to Section 4.1, and the denominator of which is the aggregate number of shares of Preferred Stock owned by all Stockholders; (ii) where the Selling Person is selling Common Stock, the number of shares of Common Stock held (or, without duplication, acquirable under the Warrants) by the Tagging Person or the Selling Person, as the case may be, multiplied by a fraction, the numerator of which is the number of shares of Common Stock proposed to be sold in the Tag-Along Sale pursuant to Section 4.1, and the denominator of which is the aggregate number of shares of Common Stock on a Fully Diluted basis owned by all Stockholders, and (iii) where the Selling Person is selling Warrants, the number of shares of Common Stock held (or, without duplication, acquirable under the Warrants) by the Tagging Person or the Selling Person, as the case may be, multiplied by a fraction the numerator of which is the number of shares of Common Stock for which the Warrants proposed to be sold in the Tag-Along Sale pursuant to Section 4.1 are exercisable, and the denominator of which is the aggregate number of shares of Common Stock on a Fully Diluted basis owned by all Stockholders, provided that where a Tag-Along Right includes the right to sell Common Stock, any holder of Warrants may, in lieu of exercising Warrants, transfer Warrants for some or all of that number of shares of Common Stock as would otherwise have constituted its Tag-Along Portion, in which event the price to be received with respect to each such Warrant shall be the price per share of Common Stock applicable to the Tag-Along Offer, less the then applicable exercise price of the Warrants owned by such holder. "Thermadyne Investment Program" means the Thermadyne Holdings Corporation Direct Investment Program. "Thermadyne New Option Program" means the Thermadyne Holdings Corporation Management Incentive Plan. "Third Party" means a prospective purchaser of Shares in an arm's-length transaction from a Stockholder where such purchaser is not a Permitted Transferee of such Stockholder. "Warrants" means the warrants issued by the Company to Stockholders for the purchase of an aggregate of 353,428 shares of Common Stock (subject to adjustment as provided for herein). "Warrant Shares" means shares of Common Stock issuable by the Company upon exercise of the Warrants. (b) The term "DLJ Entities", to the extent such entities shall have transferred any of their Shares to "Permitted Transferees", shall mean the DLJ Entities and the Permitted Transferees of the DLJ Entities, taken together, and any right or action that may be taken at the election of the DLJ Entities may be taken at the election of the DLJ Entities and such Permitted Transferees. (c) The term "Other Stockholders", to the extent such stockholders shall have transferred any of their Shares to "Permitted Transferees", shall mean the Other Stockholders and the Permitted Transferees of the Other Stockholders, taken together, and any right or action that may be taken at the election of the Other Stockholders may be taken at the election of the Other Stockholders and such Permitted Transferees. (d) Each of the following terms is defined in the Section set forth opposite such term: Term Section ---- ------- Applicable Holdback Period 5.03 beneficially own 1.1(a) Demand Registration 5.1(e) DLJSC 6.3 Drag-Along Rights 4.2(a) Holders 5.1(e) Incidental Registration 5.1(e) Indemnified Party 5.7 Indemnifying Party 5.7 Independent Director 2.1(a) Inspectors 5.4(g) Maximum Offering Size 5.1(e) Nominee 2.3(a) Records 5.4(g) Section 4.01 Response Notice 4.1(a) Section 4.02 Notice 4.2(a) Section 4.02 Notice Period 4.2(a) Section 4.02 Sale 4.2(a) Section 4.02 Sale Price 4.2(a) Selling Person 4.1(a) Selling Stockholder 5.1(e) Tag-Along Notice 4.1(a) Tag-Along Notice Period 4.1(a) Tag-Along Offer 4.1(a) Tag-Along Right 4.1(a) Tag-Along Sale 4.1(a) Tagging Person 4.1(a) transfer 3.1(a) ARTICLE 2 Corporate Governance Section 2.1. Composition of the Board. (a) The Board shall consist initially of seven directors, five of whom will be designated by DLJ Merchant Banking Partners II, L.P., one of whom will be Randall E. Curran and one of whom will be James H. Tate, in each case for so long as such person is employed by the Company; provided that at least one of the directors designated by DLJ Merchant Banking Partners II, L.P. shall not be either an "Affiliate" or an "Associate" (as such terms are used within the meaning of Rule 12b-2 under the Exchange Act) of the DLJ Entities or the Other Stockholders (the "Independent Director") and such Independent Director shall be designated by DLJ Merchant Banking Partners II, L.P. after consultation with the Other Stockholders. The DLJ Entities shall be permitted at any time to increase the number of directors from seven to eight and DLJ Merchant Banking Partners II, L.P. shall be permitted to designate the eighth director. (b) Each Stockholder entitled to vote for the election of directors to the Board agrees that it will vote its Shares or execute written consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of stockholders) in order to ensure that the composition of the Board is as set forth in this Section 2.1; provided that the Other Stockholders shall not be required to vote for the board-designees of the DLJ Entities if the aggregate number of Common Shares held by the DLJ Entities is less than 10% of their Initial Ownership of Common Shares. Section 2.2. Removal. Each Stockholder agrees that if, at any time, it is then entitled to vote for the removal of directors of the Company, it will not vote any of its Shares in favor of the removal of any director who shall have been designated or nominated pursuant to Section 2.1 unless such removal shall be for cause or the Persons entitled to designate or nominate such director shall have consented to such removal in writing. Section 2.3. Vacancies. If, as a result of death, disability, retirement, resignation, removal (with or without cause) or otherwise, there shall exist or occur any vacancy of the Board: (a) the Person or Persons entitled under Section 2.1 to designate or nominate such director whose death, disability, retirement, resignation or removal resulted in such vacancy may designate another individual (the "Nominee") to fill such capacity and serve as a director of the Company; and (b) each Stockholder then entitled to vote for the election of the Nominee as a director of the Company agrees that it will vote its Shares, or execute a written consent, as the case may be, in order to ensure that the Nominee is elected to the Board. Section 2.4. Meetings. The Board shall hold a regularly scheduled meeting at least once every calendar quarter. Section 2.5. Action by the Board. (a) A quorum of the Board shall consist of four directors, of whom at least three must be designees of DLJ Merchant Banking Partners II, L.P.; provided that the DLJ Entities shall have the right at any time to increase the number of directors necessary to constitute a quorum of the Board. All actions of the Board shall require the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or the unanimous written consent of the Board; provided that, in the event there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy. (b) The Board may create executive, compensation and audit committees, as well as such other committees as it may determine. The DLJ Entities shall be entitled to majority representation on any committee created by the Board and, to the extent not prohibited by or inadvisable under applicable law, the Other Stockholders shall be entitled to at least one representative on any such committee. Section 2.6. Conflicting Charter or Bylaw Provisions. Each Stockholder shall vote its Shares or execute written consents, as the case may be, and take all other actions necessary, to ensure that the Company's Charter and Bylaws facilitate and do not at any time conflict with any provision of this Agreement. ARTICLE 3 Restrictions on Transfer Section 3.1. General. (a) Each Stockholder understands and agrees that the Company Securities purchased pursuant to the applicable subscription agreement or the Thermadyne Investment Program and the Thermadyne New Option Program have not been registered under the Securities Act and are restricted securities. Each Stockholder agrees that it will not, directly or indirectly, sell, assign, transfer, grant a participation in, pledge or otherwise dispose of ("transfer") any Company Securities (or solicit any offers to buy or otherwise acquire, or take a pledge of any Company Securities) except in compliance with the Securities Act and the terms and conditions of this Agreement. Any attempt to transfer any Company Securities not in compliance with this Agreement shall be null and void and the Company shall not, and shall cause any transfer agent not to, give any effect in the Company's stock records to such attempted transfer. Section 3.2. Legends. In addition to any other legend that may be required, each certificate for shares of Common Stock or Preferred Stock and each Warrant that is issued to any Stockholder shall bear a legend in substantially the following form: "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. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT DATED AS OF MAY 22, 1998, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THERMADYNE HOLDINGS CORPORATION OR ANY SUCCESSOR THERETO." If any Company Securities shall cease to be Registrable Securities under clause (i) or clause (ii) of the definition thereof, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such securities without the first sentence of the legend required by this Section endorsed thereon. If any Company Securities cease to be subject to any and all restrictions on transfer set forth in this Agreement, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Company Securities without the second sentence of the legend required by this Section endorsed thereon. Section 3.3. Permitted Transferees. Notwithstanding anything in this Agreement to the contrary, any Stockholder may at any time transfer any or all of its Company Securities to one or more of its Permitted Transferees without the consent of the Board or any other Stockholder or group of Stockholders and without compliance with Sections 3.4 and 4.1 so long as (a) such Permitted Transferee shall have agreed in writing to be bound by the terms of this Agreement and (b) the transfer to such Permitted Transferee is not in violation of applicable federal or state securities laws. Section 3.4. Restrictions on Transfers by Management Stockholders. (a) Each Management Stockholder and each Permitted Transferee of such Management Stockholder may transfer its Company Securities only as follows: (i) in a transfer made in compliance with Section 4.1 or 4.2, 4.3 or as permitted or required by the Thermadyne Investment Program, the Thermadyne New Option Program or any employment contract between the Company or any Subsidiary and an employee; (ii) subject to the Public Offering Limitations, in a Public Offering in connection with the exercise of its rights under Article 5 hereof; (iii) in a transfer made at the conclusion of the Applicable Holdback Period (as defined in Section 5.03) following a Public Offering, in compliance with Rule 144 promulgated under the Securities Act; provided, however, that until the Restriction Termination Date, the Aggregate Ownership of such Management Stockholder as a result of such transfer shall be equal to or exceed the greater of (x) 50% of such Management Stockholder's Initial Ownership of Common Stock and (y) the percentage of such Management Stockholder's Initial Ownership that is equal to the Aggregate Ownership of the DLJ Entities as a percentage of the DLJ Entities' Initial Ownership; or (iv) following the Restriction Termination Date, to any Third Party other than an Adverse Person for consideration consisting solely of cash, provided, however, that the number of Shares transferred by such Management Stockholder pursuant to this Section 3.04(a)(iv) in any twelve-month period shall not exceed 20% of the greater of (x) such Management Stockholder's Aggregate Ownership at the beginning of such twelve month period and (y) such Management Stockholder's Aggregate Ownership as of the date hereof. For purposes of this Agreement, "Public Offering Limitations" means (A) except as set forth in the proviso at the end of this paragraph, no Management Stockholder shall be permitted to exercise its rights under Section 5.02 hereof (x) with respect to the First Public Offering and (y) until such time as the Aggregate Ownership of the DLJ Entities shall be less than 50% of their aggregate Initial Ownership of Common Stock and (B) in each Public Offering following the First Public Offering, such Management Stockholder shall be entitled to transfer a number of Shares not exceeding such Management Stockholder's Pro Rata Portion of non-Purchased Shares; provided, however, that notwithstanding the restrictions set forth in clauses (A) and (B), each Management Stockholder shall be permitted to exercise its rights pursuant to Section 5.2 hereof in respect of such Management Stockholder's Pro Rata Portion of its Purchased Shares in any Public Offering. (b) The provisions of Section 3.04(a) shall terminate upon the earliest to occur of (i) the fifth anniversary of the Closing Date and (ii) a Change of Control. Notwithstanding the foregoing sentence, the provisions of Section 3.04(a) shall not terminate with respect to any Management Stockholder's Shares which shall have been pledged to the Company as security in connection with any indebtedness for borrowed money owed by such Management Stockholder to the Company unless the proceeds from the sale of such Shares are applied to repay such indebtedness in full. (c) In addition to any other restriction contained in this Agreement and notwithstanding any other provision of this Section 3.4, neither a Management Stockholder nor any Permitted Transferee thereof may transfer Coinvestment Shares (as defined in the Thermadyne Investment Program) prior to the date such Shares have vested in accordance with the terms of the Thermadyne Investment Program and the relevant purchase agreement thereunder. ARTICLE 4 Tag-along Rights; Drag-along Rights Section 4.1. Rights to Participate in Transfer. (a) If DLJ Entities (the "Selling Person") propose to transfer (other than transfers of shares of Company Securities (i) in a Public Offering, (ii) to any Permitted Transferee of any of the DLJ Entities or (iii) any transfer of Preferred Stock or any transfer of Warrants made in conjunction with such a transfer of Preferred Stock), in a transaction otherwise permitted by Article 3 hereof, a number of Company Securities of any class of securities of the Company equal to or exceeding 10% of the Aggregate Ownership of the DLJ Entities of securities of such class in a single transaction or in a series of related transactions on the date of the proposed sale (a "Tag-Along Sale"), the Other Stockholders may, at their option, elect to exercise their rights under this Section 4.1 (each such Stockholder, a "Tagging Person"). In the event of such a proposed transfer, the Selling Person shall provide each Other Stockholder written notice of the terms and conditions of such proposed transfer ("Tag-Along Notice") and offer each Tagging Person the opportunity to participate in such sale. The Tag-Along Notice shall identify the number and type of Company Securities subject to the offer ("Tag-Along Offer"), the cash price at which the transfer is proposed to be made, and all other material terms and conditions of the Tag-Along Offer, including the form of the proposed agreement, if any. From the date of the Tag-Along Notice, each Tagging Person shall have the right (a "Tag-Along Right"), exercisable by written notice ("Section 4.01 Response Notice") given to the Selling Person within 10 Business Days (the "Tag-Along Notice Period"), to request that the Selling Person include in the proposed transfer the number of Company Securities held by such Tagging Person as is specified in such notice; provided that if the aggregate number of Company Securities proposed to be sold by the Selling Person and all Tagging Persons in such transaction exceeds the number of Company Securities which can be sold on the terms and conditions set forth in the Tag-Along Notice, then only the Tag-Along Portion of Company Securities of each Tagging Person shall be sold pursuant to the Tag-Along Offer and the Selling Person shall sell its Tag-Along Portion of Company Securities and such additional Company Securities as permitted by Section 4.01(d). If the Tagging Persons exercise their Tag-Along Rights hereunder, each Tagging Person shall deliver, together with its Section 4.01 Response Notice, to the Selling Person the certificate or certificates representing the Company Securities of such Tagging Person to be included in the transfer, together with a limited power-of-attorney authorizing the Selling Person to transfer such Securities on the terms set forth in the Tag-Along Notice. Delivery of such certificate or certificates representing the Company Securities to be transferred and the limited power-of-attorney authorizing the Selling Person to transfer such Company Securities shall constitute an irrevocable acceptance of the Tag-Along Offer by such Tagging Persons. If, at the end of a 120 day period after such delivery, the Selling Person has not completed the transfer of all such Company Securities on substantially the same terms and conditions set forth in the Tag-Along Notice, the Selling Person shall return to each Tagging Person the limited power-of-attorney (and all copies thereof) together with all certificates representing the Company Securities which such Tagging Person delivered for transfer pursuant to this Section 4.1. (b) Concurrently with the consummation of the Tag-Along Sale, the Selling Person shall notify the Tagging Persons thereof, shall remit to the Tagging Persons the total consideration (by bank or certified check) for the Company Securities of the Tagging Persons transferred pursuant thereto, and shall, promptly after the consummation of such Tag-Along Sale, furnish such other evidence of the completion and time of completion of such transfer and the terms thereof as may be reasonably requested by the Tagging Persons. (c) If at the termination of the Tag-Along Notice Period any Tagging Person shall not have elected to participate in the Tag-Along Sale, such Tagging Person will be deemed to have waived its rights under Section 4.1(a) with respect to the transfer of its securities pursuant to such Tag-Along Sale. (d) If any Tagging Person declines to exercise its Tag-Along Rights or elects to exercise its Tag-Along Rights with respect to less than such Tagging Person's Tag-Along Portion, the DLJ Entities shall be entitled to transfer, pursuant to the Tag-Along Offer, a number of Company Securities held by the DLJ Entities equal to the number of Company Securities constituting the portion of such Tagging Person's Tag-Along Portion with respect to which Tag-Along Rights were not exercised. (e) The DLJ Entities and any Tagging Person who exercises the Tag-Along Rights pursuant to this Section 4.1 may sell the Company Securities subject to the Tag-Along Offer on the terms and conditions set forth in the Tag-Along Notice (provided, however, that the cash price payable in any such sale may exceed the cash price specified in the Tag-Along Notice by up to 10%) within 120 days of the date on which Tag-Along Rights shall have been waived, exercised or expire. Section 4.2. Right to Compel Participation in Certain Transfers. (a) If (i) the DLJ Entities propose to transfer not less than 50% of their Initial Ownership of Common Stock to a Third Party in a bona fide sale or (ii) the DLJ Entities propose a transfer in which the shares of Common Stock to be transferred by the DLJ Entities and their Permitted Transferees constitute more than 50% of the outstanding shares of Common Stock (a "Section 4.02 Sale"), the DLJ Entities may at their option require all Other Stockholders to sell the Drag-Along Portion of the Subject Securities ("Drag-Along Rights") then held by every Other Stockholder, and (subject to and at the closing of the Section 4.02 Sale) to exercise all, but not less than all, of the options or Warrants held by every Other Stockholder and to sell all of the shares of Common Stock received upon such exercise to such Third Party, for the same consideration per share of Common Stock and otherwise on the same terms and conditions as the DLJ Entities; provided that any Other Stockholder who holds options or Warrants the exercise price per share of which is greater than the per share price at which the Shares are to be sold to the Third Party may, if required by the DLJ Entities to exercise such options, in place of such exercise, submit to irrevocable cancellation thereof without any liability for payment of any exercise price with respect thereto. In the event the Section 4.02 Sale is not consummated with respect to any shares acquired upon exercise of such options or Warrants, or the Section 4.02 Sale is not consummated, such options or Warrants shall be deemed not to have been exercised or canceled, as applicable. DLJMB shall provide written notice of such Section 4.02 Sale to the Other Stockholders (a "Section 4.02 Notice") not later than the 15th day prior to the proposed Section 4.02 Sale. The Section 4.02 Notice shall identify the transferee, the number of Subject Securities, the consideration for which a transfer is proposed to be made (the "Section 4.02 Sale Price") and all other material terms and conditions of the Section 4.02 Sale. The number of shares of Common Stock, Preferred Stock, and/or Warrants to be sold by each Other Stockholder will be the Drag-Along Portion of the shares of Common Stock, Preferred Stock, and/or Warrants that such Other Stockholder owns. Subject to Sections 4.02 and 4.03, each Other Stockholder shall be required to participate in the Section 4.02 Sale on the terms and conditions set forth in the Section 4.02 Notice and to tender all its Subject Securities as set forth below. The price payable in such transfer shall be the Section 4.02 Sale Price. Not later than the 10th day following the date of the Section 4.02 Notice (the "Section 4.02 Notice Period"), each of the Other Stockholders shall deliver to a representative of DLJMB designated in the Section 4.02 Notice certificates representing all Subject Securities representing the Drag Along Portion held by such Other Stockholder, duly endorsed, together with all other documents required to be executed in connection with such Section 4.02 Sale. If an Other Stockholder should fail to deliver such certificates to DLJMB, the Company shall cause the books and records of the Company to show that such Subject Securities are bound by the provisions of this Section 4.02 and Section 4.03 and that such Subject Securities shall be transferred to the purchaser of the Subject Securities immediately upon surrender for transfer by the holder thereof. (b) The DLJ Entities shall have a period of 90 days from the date of receipt of the Section 4.02 Notice to consummate the Section 4.02 Sale on the terms and conditions set forth in such Section 4.02 Sale Notice. If the Section 4.02 Sale shall not have been consummated during such period, DLJMB shall return to each of the Other Stockholders all certificates representing Subject Securities that such Other Stockholder delivered for transfer pursuant hereto, together with any documents in the possession of DLJMB executed by the Other Stockholder in connection with such proposed transfer, and all the restrictions on transfer contained in this Agreement or otherwise applicable at such time with respect to Common Stock owned by the Other Stockholders shall again be in effect. (c) Concurrently with the consummation of the transfer of Company Securities pursuant to this Section 4.02 and Section 4.03, DLJMB shall give notice thereof to all Stockholders, shall remit to each of the Stockholders who have surrendered their certificates the total consideration (by bank or certified check) for the Subject Securities transferred pursuant hereto and shall furnish such other evidence of the completion and time of completion of such transfer and the terms thereof as may be reasonably requested by such Stockholders. Section 4.3. Certain Rights. It is understood and agreed that the employment agreements or associated restricted stock purchase agreements between one or more Management Stockholders and the Company or any Subsidiary may contain provisions permitting or requiring, under certain circumstances, such Management Stockholders to sell to the Company or a Subsidiary, and permitting or requiring, under certain circumstances, the Company or such Subsidiary to purchase from such Management Stockholder, Company Securities. Such provisions may, by the terms of such agreements, remain effective notwithstanding that the employment relationship created by such employment agreements has been terminated, in which event such provisions are deemed to be incorporated herein and made a part hereof, to the extent appropriate. ARTICLE 5 Registration Rights Section 5.1. Demand Registration. (a) If the Company shall receive a written request by the DLJ Entities or their Permitted Transferees (any such requesting Person, a "Selling Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "Demand Registration") at least 5 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the Other Stockholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of: (i) the Registrable Securities which the Company has been so requested to register by the Selling Stockholders, then held by the Selling Stockholders; and (ii) subject to the restrictions set forth in Section 3.04, all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to request the Company to effect an Incidental Registration (as such term is defined in Section 5.02) pursuant to Section 5.02 (all such Stockholders, together with the Selling Stockholders, the "Holders") has requested the Company to register by written request received by the Company within 2 days after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.1(d) hereof, the Company shall not be obligated to effect more than six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any four-month period. (b) Promptly after the expiration of the 2-day period referred to in Section 5.1(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of Registrable Securities requested to be included therein. The Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless the participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the fault of the Company, in which case such request shall not be considered a Demand Registration. (c) The Company will pay all Registration Expenses in connection with any Demand Registration. (d) A registration requested pursuant to this Section shall not be deemed to have been effected (i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section becomes effective (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (y) less than 75% of the Registrable Securities included in such registration statement has been sold thereunder, such registration statement shall not be considered a Demand Registration or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the Registrable Securities of the Selling Stockholders sought to be included in such registration are included. (e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view, (i) the number of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size: (A) first, all Benchmark Securities requested to be registered by the Selling Stockholder and by all other DLJ Entities and their Permitted Transferees (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of shares of Registrable Securities requested to be registered); (B) second, all Registrable Securities (other than Benchmark Securities) requested to be included in such registration by all DLJ Entities and their Permitted Transferees and any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such DLJ Entities and their Permitted Transferees and such other Holders on the basis of the relative number of shares of Registrable Securities (excluding any Benchmark Securities) requested to be included in such registration); and (C) third, any securities proposed to be registered by the Company. (f) If, in connection with any Demand Registration pursuant to this Section with respect to the Preferred Stock, any Selling Stockholder shall seek to transfer any Warrants together with shares of Preferred Stock, the Company shall at the request of any such Stockholder effect a registration of such Warrants to which the provisions of this Article 5 shall apply mutatis mutandis and a registration, pursuant to a shelf registration statement, so as to permit the resale of the shares of Common Stock for which any Warrants so transferred may be exercisable. The Company shall maintain the effectiveness of any such shelf registration statement, and take all actions necessary to permit resale of such Common Stock as may be required by applicable state securities laws. Section 5.2. Incidental Registration. (a) If the Company proposes to register any Company Securities under the Securities Act (other than a registration (A) on Form S-8 or S-4 or any successor or similar forms, (B) relating to Common Stock issuable upon exercise of employee stock options or in connection with any employee benefit or similar plan of the Company or (C) in connection with a direct or indirect acquisition by the Company of another company), whether or not for sale for its own account, it will each such time, subject to the provisions of Section 5.2(b), give prompt written notice at least 30 days prior to the anticipated filing date of the registration statement relating to such registration to each DLJ Entity and each Other Stockholder, which notice shall set forth such Stockholder's rights under this Section 5.2 and shall offer such Stockholders the opportunity to include in such registration statement such number of Registrable Securities of the same type as are proposed to be registered as each such Stockholder may request (an "Incidental Registration"). Upon the written request of any such Stockholder made within 15 days after the receipt of notice from the Company (which request shall specify the number of Registrable Securities intended to be disposed of by such Stockholder), the Company will use its best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by such Stockholders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered; provided that (I) if such registration involves a Public Offering, all such Stockholders requesting to be included in the Company's registration must sell their Registrable Securities to the underwriters selected as provided in Section 5.4(f) on the same terms and conditions as apply to the Company and (II) if, at any time after giving written notice of its intention to register any stock pursuant to this Section 5.2(a) and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such securities, the Company shall give written notice to all such Stockholders and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (without prejudice, however, to rights of any DLJ Entity under Section 5.1). No registration effected under this Section 5.2 shall relieve the Company of its obligations to effect a Demand Registration to the extent required by Section 5.1. The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 5.2. (b) If a registration pursuant to this Section 5.2 involves a Public Offering (other than in the case of a Public Offering requested by any DLJ Entity or any of their Permitted Transferees or the Other Stockholders in a Demand Registration, in which case the provisions with respect to priority of inclusion in such offering set forth in Section 5.01(e) shall apply) and the managing underwriter advises the Company that, in its view, the number of Shares that the Company and such Stockholders intend to include in such registration exceeds the Maximum Offering Size, the Company will include in such registration, in the following priority, up to the Maximum Offering Size: (i) first, so much of the securities proposed to be registered by the Company as would not cause the offering to exceed the Maximum Offering Size; (ii) second, all Benchmark Securities requested to be included in such registration statement by the DLJ Entities and their Permitted Transferees (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of shares of Registrable Securities requested to be so included); and (iii) third, all Registrable Securities other than Benchmark Securities requested to be included in such registration by any DLJ Entity and its Permitted Transferees or any Other Stockholder pursuant to this Section 5.2 (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of the relative number of shares of Registrable Securities (excluding any Benchmark Securities) so requested to be included in such registration). Section 5.3. Holdback Agreements. If any registration of Registrable Securities shall be in connection with a Public Offering, each DLJ Entity and its Permitted Transferees and each Other Stockholder agrees not to effect any public sale or distribution, including any sale pursuant to Rule 144, or any successor provision, under the Securities Act, of any Registrable Securities, and not to effect any such public sale or distribution of any other Common Stock of the Company or of any stock convertible into or exchangeable or exercisable for any Common Stock of the Company (in each case, other than as part of such Public Offering) during the 14 days prior to the effective date of such registration statement (except as part of such registration) or during the period after such effective date equal to the lesser of (i) such period of time as agreed between such managing underwriter and the Company and (ii) 180 days (such lesser period, the "Applicable Holdback Period"). Section 5.4. Registration Procedures. Whenever Stockholders request that any Registrable Securities be registered pursuant to Section 5.1 or 5.2, the Company will, subject to the provisions of such Sections, use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request: (a) The Company will as expeditiously as possible prepare and file with the SEC a registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its best efforts to cause such filed registration statement to become and remain effective for a period of not less than 180 days. (b) The Company will, if requested, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish to participating Stockholder and each underwriter, if any, of the Registrable Securities covered by such registration statement copies of such registration statement as proposed to be filed, and thereafter the Company will furnish to such Stockholder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Stockholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Stockholder. (c) After the filing of the registration statement, the Company will promptly notify each Stockholder holding Registrable Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered. (d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions in the United States as any Stockholder holding such Registrable Securities reasonably (in light of such Stockholder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Stockholder to consummate the disposition of the Registrable Securities owned by such Stockholder; provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction. (e) The Company will immediately notify each Stockholder holding such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Stockholder any such supplement or amendment. (f) (i) The DLJ Entities will have the right, in their sole discretion, to select an underwriter or underwriters in connection with any Public Offering resulting from the exercise by any such DLJ Entity or its Permitted Transferee of a Demand Registration, which underwriter or underwriters may include any Affiliate of any DLJ Entity and (ii) the Company will select an underwriter or underwriters in connection with any other Public Offering. In connection with any Public Offering, the Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of Registrable Securities in any such Public Offering, including the engagement of a "qualified independent underwriter" in connection with the qualification of the underwriting arrangements with the NASD. (g) Upon the execution of confidentiality agreements in form and substance satisfactory to the Company, the Company will make available for inspection by any Stockholder and any underwriter participating in any disposition pursuant to a registration statement being filed by the Company pursuant to this Section 5.4 and any attorney, accountant or other professional retained by any such Stockholder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Stockholder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the Company Securities or its Affiliates unless and until such is made generally available to the public. Each Stockholder further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential. (h) The Company will furnish to each such Stockholder and to each such underwriter, if any, a signed counterpart, addressed to such underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as a majority of such Stockholders or the managing underwriter therefor reasonably requests. (i) The Company will otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to its stockholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act. The Company may require each such Stockholder to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each such Stockholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.4(e), such Stockholder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Stockholder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.4(e), and, if so directed by the Company, such Stockholder will deliver to the Company all copies, other than any permanent file copies then in such Stockholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event that the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 5.4(a)) by the number of days during the period from and including the date of the giving of notice pursuant to Section 5.4(e) to the date when the Company shall make available to such Stockholder a prospectus supplemented or amended to conform with the requirements of Section 5.4(e). Section 5.5. Indemnification by the Company. The Company agrees to indemnify and hold harmless each Stockholder holding Registrable Securities covered by a registration statement, its officers, directors and agents, and each person, if any, who controls such Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company by such Stockholder or on such Stockholder's behalf expressly for use therein; provided that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, or in any prospectus, as the case may be, the indemnity agreement contained in this paragraph shall not apply to the extent that any such loss, claim, damage, liability or expense results from the fact that a current copy of the prospectus (or, in the case of a prospectus, the prospectus as amended or supplemented) was not sent or given to the person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such person if it is determined that the Company has provided such prospectus and it was the responsibility of such Stockholder to provide such person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Company also agrees to indemnify any underwriters of the Registrable Securities, their officers and directors and each person who controls such underwriters on substantially the same basis as that of the indemnification of the Stockholders provided in this Section 5.5. Section 5.6. Indemnification by Participating Stockholders. Each Stockholder holding Registrable Securities included in any registration statement agrees, severally but not jointly, to indemnify and hold harmless the Company, its officers, directors and agents and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Stockholder, but only (i) with respect to information furnished in writing by such Stockholder or on such Stockholder's behalf expressly for use in any registration statement or prospectus relating to the Registrable Securities, or any amendment or supplement thereto, or any preliminary prospectus or (ii) to the extent that any loss, claim, damage, liability or expense described in Section 5.5 results from the fact that a current copy of the prospectus (or, in the case of a prospectus, the prospectus as amended or supplemented) was not sent or given to the person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such person if it is determined that it was the responsibility of such Stockholder to provide such person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss, claim, damage, liability or expense. Each such Stockholder also agrees to indemnify and hold harmless underwriters of the Registrable Securities, their officers and directors and each person who controls such underwriters on substantially the same basis as that of the indemnification of the Company provided in this Section 5.6. As a condition to including Registrable Securities in any registration statement filed in accordance with Article 5 hereof, the Company may require that it shall have received an undertaking reasonably satisfactory to it from any underwriter to indemnify and hold it harmless to the extent customarily provided by underwriters with respect to similar securities. Section 5.7. Conduct of Indemnification Proceedings. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Article 5, such person (an "Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party") in writing and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Party, and shall assume the payment of all fees and expenses; provided that the failure of any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) in the reasonable judgment of such Indemnified Party representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Indemnified Parties, such firm shall be designated in writing by the Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such proceeding. Section 5.8. Contribution. If the indemnification provided for in this Article 5 is unavailable to the Indemnified Parties in respect of any losses, claims, damages or liabilities referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (i) as between the Company and the Stockholders holding Registrable Securities covered by a registration statement on the one hand and the underwriters on the other, in such proportion as is appropriate to reflect the relative benefits received by the Company and such Stockholders on the one hand and the underwriters on the other, from the offering of the Registrable Securities, or if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Company and such Stockholders on the one hand and of such underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations and (ii) as between the Company on the one hand and each such Stockholder on the other, in such proportion as is appropriate to reflect the relative fault of the Company and of each such Stockholder in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefits received by the Company and such Stockholders on the one hand and such underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company and such Stockholders bear to the total underwriting discounts and commissions received by such underwriters, in each case as set forth in the table on the cover page of the prospectus. The relative fault of the Company and such Stockholders on the one hand and of such underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and such Stockholders or by such underwriters. The relative fault of the Company on the one hand and of each such Stockholder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Stockholders agree that it would not be just and equitable if contribution pursuant to this Section 5.8 were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.8, no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Stockholder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of such Stockholder were offered to the public exceeds the amount of any damages which such Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Each such Stockholder's obligation to contribute pursuant to this Section 5.8 is several in the proportion that the proceeds of the offering received by such Stockholder bears to the total proceeds of the offering received by all such Stockholders and not joint. Section 5.9. Participation in Public Offering. No Person may participate in any Public Offering hereunder unless such Person (a) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements an (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements and the provisions of this Agreement in respect of registration rights. Section 5.10. Other Indemnification. Indemnification similar to that specified herein (with appropriate modifications) shall be given by the Company and each Stockholder participating therein with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority other than the Securities Act. Section 5.11. Cooperation by the Company. In the event any Stockholder shall transfer any Registrable Securities pursuant to Rule 144A under the Securities Act, the Company shall cooperate with such Stockholder (which shall include, without limitation, making registration rights with respect to the Registrable Securities to be sold (or securities issuable or to be issued in exchange therefor) available to the ultimate purchasers thereof) and shall provide to such Stockholder such information as such Stockholder shall reasonably request. ARTICLE 6 Miscellaneous Section 6.1. Entire Agreement. This Agreement and the Securities Purchase Agreement constitute the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral and written, among the parties hereto with respect to the subject matter hereof. Section 6.2. Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, expressed or implied, shall confer on any Person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. Section 6.3. Exclusive Financial and Investment Banking Advisor. During the period from and including the date hereof through and including the fifth anniversary of the date hereof, Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"), or any Affiliate of DLJSC that the DLJ Entities may choose in their sole discretion, shall be engaged as the exclusive financial and investment banking advisor of the Company. DLJSC or such Affiliate shall be entitled to reimbursement from the Company for all expenses incurred by DLJSC or such Affiliate (including, without limitation, fees and expenses of counsel) as financial and investment banking advisor of the Company. Section 6.4. Assignability. This Agreement shall not be assignable by any party hereto, except that any Person acquiring Shares who is required by the terms of this Agreement or any employment agreement or stock purchase, option, stock option or other compensation plan of the Company or any Subsidiary to become a party hereto shall (unless already bound hereby) execute and deliver to the Company an agreement to be bound by this Agreement and shall thenceforth be a "Stockholder". Any Stockholder who ceases to own beneficially any Shares shall cease to be bound by the terms hereof (other than the provisions of Sections 5.5, 5.6, 5.7, 5.8, and 5.10 applicable to such Stockholder with respect to any offering of Registrable Securities completed before the date such Stockholder ceased to own any Shares). Section 6.5. Amendment; Waiver; Termination. No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective. No provision of this Agreement may be amended or otherwise modified except by an instrument in writing executed by the Company with the approval of the Board and Stockholders holding at least 75% of the outstanding Shares; provided that any amendment or other modification of this Agreement that would adversely affect any Founding Stockholder may be effected only with the consent of such Stockholder. Section 6.6. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmissions and shall be given, if to the Company or the Management Stockholders, to: Thermadyne Holdings Corporation 101 South Hanley Road St. Louis, Missouri 63105 (314) 721-5573 Attention: James H. Tate Stephanie N. Josephson Fax: (314) 746-2374 with a copy to: Weil, Gotshal & Manges 100 Crescent Court, Suite 1300 Dallas, Texas 75201 Attention: R. Scott Cohen Fax: (214) 746-7777 and a copy to the DLJ Entities at their addresses listed below. if to the DLJ Entities, to: DLJ Merchant Banking Partners II, L.P. 277 Park Avenue New York, New York 10172 Attention: Peter T. Grauer Fax: (212) 892-7552 with a copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: George R. Bason, Jr. Fax: (212) 450-4800 All 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. Any notice, request or other written communication sent by facsimile transmission shall be confirmed by certified mail, return receipt requested, posted within one Business Day, or by personal delivery, whether courier or otherwise, made within two Business Days after the date of such facsimile transmission. Any Person who becomes a Stockholder shall provide its address and fax number to the Company, which shall promptly provide such information to each other Stockholder. Section 6.7. Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement. Section 6.8. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Section 6.9. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE. Section 6.10. Specific Enforcement. Each party hereto acknowledges that the remedies at law of the other parties for a breach or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party to this Agreement, without posting any bond, and in addition to all other remedies which may be available, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. Section 6.11. Consent to Jurisdiction. 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 non-exclusive 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 6.6 shall be deemed effective service of process on such party. 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: DLJ MERCHANT BANKING PARTNERS II, L.P. BY DLJ MERCHANT BANKING II, INC. Managing General Partner By: ---------------------------- Name: Title: DLJ MERCHANT BANKING PARTNERS II-A, L.P. BY DLJ MERCHANT BANKING II, INC., Managing General Partner By: ---------------------------- Name: Title: DLJ OFFSHORE PARTNERS II, C.V. BY DLJ MERCHANT BANKING II, INC., Advisory General Partner By: ---------------------------- Name: Title: DLJ DIVERSIFIED PARTNERS, L.P. BY DLJ DIVERSIFIED PARTNERS, INC., Managing General Partner By: ---------------------------- Name: Title: DLJ DIVERSIFIED PARTNERS-A, L.P. BY DLJ DIVERSIFIED PARTNERS, INC., Managing General Partner By: ---------------------------- Name: Title: DLJMB FUNDING II, INC. By: ---------------------------- Name: Title: DLJ EAB PARTNERS, L.P. BY DLJ LBO PLANS MANAGEMENT CORPORATION, General Partner By: ---------------------------- Name: Title: DLJ MILLENNIUM PARTNERS, L.P. BY DLJ MERCHANT BANKING II, INC., Managing General Partner By: ---------------------------- Name: Title: UK INVESTMENT PLAN 1997 PARTNERS DONALDSON, LUFKIN & JENRETTE, INC., General Partner By: ---------------------------- Name: Title: DLJ FIRST ESC, L.P. BY DLJ LBO PLANS MANAGEMENT CORPORATION, as General Partner By: ---------------------------- Name: Title: DLJ ESC II, L.P. BY DLJ LBO PLANS MANAGEMENT CORPORATION, as General Partner By: ---------------------------- Name: Title: DLJ MILLENNIUM PARTNERS-A, L.P. BY DLJ MERCHANT BANKING II, INC., Managing General Partner By: ---------------------------- Name: Title: --------------------------- Randall E. Curran --------------------------- James H. Tate --------------------------- Michael E. Mahoney --------------------------- John D. McCulloch --------------------------- Michael C. O'Connell --------------------------- James R. Delany --------------------------- Hoyt H. Fitzsimmons, Jr. --------------------------- Dennis Klanjscek --------------------------- Robert D. Maddox --------------------------- Thomas C. Drury --------------------------- Stephanie N. Josephson EX-7 4 EXHIBIT 7 AMENDMENT NO. 1 to AGREEMENT AND PLAN OF MERGER between THERMADYNE HOLDINGS CORPORATION and MERCURY ACQUISITION CORPORATION AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment"), dated as of April 22, 1998, by and between Thermadyne Holdings Corporation, a Delaware corporation (the "Company"), and Mercury Acquisition Corporation, a Delaware corporation ("MergerSub"). WITNESSETH: WHEREAS, MergerSub and the Company are parties to an Agreement and Plan of Merger dated as of January 20, 1998 (the "Agreement"); and WHEREAS, the parties desire to amend the Agreement in certain respects; NOW, THEREFORE, in consideration of the premises and mutual agreements set forth herein and in the Agreement, the parties hereto agree as follows: 1. Section 1.07(a) is hereby amended by deleting the opening clause "Except as set forth on Schedule 1.07(a)," so that Section 1.07(a) now commences with the word "Immediately." 2. Schedule 1.07(a) is hereby deleted in its entirety. 3. Section 1.07(b) is renumbered 1.07(c) and the reference therein to Section 1.07(a) is hereby amended to refer to Sections 1.07(a) and 1.07(b), and a new Section 1.07(b) is hereby inserted as follows: (b) At the Effective Time, each outstanding right to purchase Shares with previously held funds under the Employee Stock Purchase Plan (the "ESPP") shall be canceled. In lieu thereof, as soon as reasonably practicable as of or after the Effective Time, the holders of such purchase rights shall receive a cash payment from the Company equal to the product of (i) the total number of Shares of Company Common Stock subject to such purchase rights immediately prior to the Effective Time and (ii) $34.50. All funds previously withheld under the ESPP will become assets of the Company. 4. Section 5.08 is hereby amended to read as follows: "[intentionally omitted]." 5. Section 8.02(f) of the Agreement is hereby deleted in its entirety, and Section 8.02(g) is renumbered 8.02(f). 6. Exhibit A of the Agreement is hereby amended to read in its entirety as follows: "SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION ***** As of the Effective Time, the Certificate of Incorporation of the Surviving Corporation, as amended and restated hereby, shall, upon its filing with the Secretary of State of the State of Delaware, read in its entirety as follows: FIRST: The name of the Corporation is Thermadyne Holdings Corporation. SECOND: The address of its registered office in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805. The name of its registered agent at such address is Corporation Service Company. THIRD: The purpose of the Corporation and the nature and objects of the business to be transacted, promoted, and carried on are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (the "Delaware Law"). FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 45,000,000, consisting of 30,000,000 shares of Common Stock, par value $0.01 per share (the "Common Stock"), and 15,000,000 shares of Preferred Stock, par value $0.01 per share (the "Preferred Stock"), of which 2,000,000 shares have been designated 13% Senior Exchangeable Preferred Stock (the "Senior Preferred Stock"). The designations and the powers and preferences, rights, qualifications, limitations and restrictions of the Common Stock and the Preferred Stock are as follows: A. Provisions Relating to the Common Stock Except as otherwise required by law, each holder of Common Stock shall be entitled to one vote for each share of common stock standing in such holder's name on the records of the Corporation on each matter submitted to a vote of the stockholders. The holders of the Common Stock shall be entitled to receive when, as, and if declared by the board of directors of the Corporation, out of funds legally available therefor, dividends payable in cash, stock, or otherwise. Upon any liquidation, dissolution, or winding up of the Corporation, whether voluntary or involuntary, and after the holders of any bonds, debentures, or other obligations of the Corporation shall have been paid in full the amounts to which they shall be entitled (if any), or a sum sufficient for such payment in full shall have been set aside, the remaining net assets of the Corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of any bonds, debentures, or other obligations of the Corporation. The Corporation may issue shares of its Common Stock from time to time for such consideration (in any form, but not less in value than the par value thereof) as may be fixed by the board of directors of the Corporation, which is expressly authorized to fix the same in its absolute and uncontrolled discretion subject to the foregoing conditions. Shares so issued for which the consideration shall have been paid or delivered to the Corporation shall be deemed fully paid stock and shall not be liable to any further call or assessment thereon, and the holders of such shares shall not be liable for any further payments in respect of such shares. The Corporation shall also have authority to create and issue rights and options entitling their holders to purchase or otherwise acquire shares of Common Stock and such rights and options shall be evidenced by instrument(s) approved by the board of directors of the Corporation. The board of directors of the Corporation shall be empowered to set the exercise price, duration, times for exercise, and other terms of such options or rights; provided, however, that the consideration to be received (which may be in any form) for any shares of Common Stock subject thereto shall have a value not less than the par value thereof. B. Provisions Relating to the Preferred Stock The Board of Directors is hereby empowered to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by the Delaware Law. C. Provisions Relating to the Senior Preferred Stock (1) Number and Designation. 2,000,000 shares of the Preferred Stock of the Corporation shall be designated as 13% Senior Exchangeable Preferred Stock. (2) Rank. The Senior Preferred Stock shall, with respect to dividend rights and rights on liquidation, dissolution and winding up, rank prior to all classes of or series of common stock of the Corporation, including the Corporation's Common Stock, and each other class of capital stock of the Corporation, the terms of which provide that such class shall rank junior to the Senior Preferred Stock or the terms of which do not specify any rank relative to the Senior Preferred Stock. All equity securities of the Corporation to which the Senior Preferred Stock ranks prior (whether with respect to dividends or upon liquidation, dissolution, winding up or otherwise), including the Common Stock, are collectively referred to herein as the "Junior Securities." All equity securities of the Corporation with which the Senior Preferred Stock ranks on a parity (whether with respect to dividends or upon liquidation, dissolution or winding up) are collectively referred to herein as the "Parity Securities." The respective definitions of Junior Securities and Parity Securities shall also include any rights or options exercisable for or convertible into any of the Junior Securities and Parity Securities, as the case may be. The Senior Preferred Stock shall be subject to the creation of Junior Securities. (3) Dividends. (a) (i) The holders of shares of Senior Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate equal to ______ [the greater of (x) 13% per annum (computed on the basis of a 360 day year) or (y) the stated rate of interest per annum payable on the Senior Subordinated Notes due 2008 of Thermadyne Mfg. LLC plus 300 basis points] (the "Dividend Rate") on the Liquidation Value of each share of Senior Preferred Stock on and as of the most recent Dividend Payment Date (as defined below). In the event the Corporation is unable or shall fail to discharge its obligation to redeem all outstanding shares of Senior Preferred Stock pursuant to paragraph 5(c) or 5(d) hereof, the Dividend Rate shall increase by .25 percent per quarter (each, a "Default Dividend") for each quarter or portion thereof following the date on which such redemption was required to be made until cured, provided that the aggregate increase shall not exceed 5%. Such dividends shall be payable in the manner set forth below in Sections 3(a)(ii) and (iii) quarterly on March 31, June 30, September 30, and December 31 of each year (unless such day is not a business day, in which event on the next succeeding business day) (each of such dates being a "Dividend Payment Date" and each such quarterly period being a "Dividend Period"). Such dividends shall be cumulative from the date of issue, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends. (ii) Prior to the fifth anniversary of the issuance of the Senior Preferred Stock (the "Cash Pay Date"), dividends shall not be payable in cash to holders of shares of Senior Preferred Stock but shall, subject to Section 3(b) hereof, accrete to the Liquidation Value in accordance with Section 4(a) hereof. (iii) Following the Cash Pay Date, each such dividend shall be payable in cash on the Liquidation Value per share of the Senior Preferred Stock, in equal quarterly amounts (to which the Default Dividend, if any, shall be added), to the holders of record of shares of the Senior Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such record dates, not more than 60 days or less than 10 days preceding the payment dates thereof, as shall be fixed by the Board of Directors. Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date, to holders of record on such date, not more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. (b) At the written request of the holders of a majority of the shares of Senior Preferred Stock, the Corporation shall, commencing on the first Dividend Payment Date after such request and ending on the Cash Pay Date, be required to pay all dividends on shares of Senior Preferred Stock by the issuance of additional shares of Senior Preferred Stock ("Additional Shares"). The Additional Shares shall be identical to all other shares of Senior Preferred Stock, except as set forth in Section 4. For the purposes of determining the number of Additional Shares to be issued as dividends pursuant to this Paragraph (b), such Additional Shares shall be valued at their Applicable Liquidation Value as provided in Section 4(c). (c) Holders of shares of Senior Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the cumulative dividends, as herein provided, on the Senior Preferred Stock. Except as provided in this Section 3, no interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Senior Preferred Stock that may be in arrears. (d) So long as any shares of the Senior Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall be declared or paid or set apart for payment on Parity Securities, for any period unless (to the extent such dividends are payable in cash) full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Senior Preferred Stock for all Dividend Periods terminating on or prior to the date of payment of the dividend on such class or series of Parity Securities. When (to the extent such dividends are payable in cash) dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon shares of the Senior Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall (in each case, to the extent payable in cash) be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Senior Preferred Stock and accumulated and unpaid on such Parity Securities. (e) So long as any shares of the Senior Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) (all such dividends, distributions, redemptions or purchases being hereinafter referred to as a "Junior Securities Distribution") for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares of the Senior Preferred Stock and any other Parity Securities shall (to the extent payable in cash) have been paid or set apart for payment for all past Dividend Periods with respect to the Senior Preferred Stock and all past dividend periods with respect to such Parity Securities and (ii) (to the extent payable in cash) sufficient funds shall have been paid or set apart for the payment of the dividend for the current Dividend Period with respect to the Senior Preferred Stock and the current dividend period with respect to such Parity Securities. (4) Liquidation Preference. (a) In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, before any payment or distribution of the assets of the Corporation (whether capital or surplus) shall be made to or set apart for the holders of Junior Securities, the holders of the shares of Senior Preferred Stock shall be entitled to receive an amount equal to the Liquidation Value of such share plus any accrued and unpaid cash dividends to the date of distribution. "Liquidation Value" on any date means, with respect to (x) any share of Senior Preferred Stock other than any Additional Shares, the sum of (1) $25.00 per share and (2) the aggregate of all dividends accreted on such share until the most recent Dividend Payment Date upon which an accretion to Liquidation Value has occurred (or if such date is a Dividend Payment Date upon which an accretion to Liquidation Value has occurred, such date), provided that in the event of an actual liquidation, dissolution or winding up of the Corporation or the redemption of any shares of Senior Preferred Stock pursuant to Section 5 hereunder, the amount referred to in (2) shall be calculated by including dividends accreting to the actual date of such liquidation, dissolution or winding up or the redemption date, as the case may be, rather than the Dividend Payment Date referred to above and provided further that in no event will dividends accrete beyond the earlier of (i) the Cash Pay Date and (ii) the most recent Dividend Payment Date prior to the Dividend Payment Date on which dividends on the Senior Preferred Stock are payable in Additional Shares and (y) any Additional Share, the Applicable Liquidation Value. All accretions to Liquidation Value will be calculated using compounding on a quarterly basis. Except as provided in the preceding sentences, holders of shares of Senior Preferred Stock shall not be entitled to any distribution in the event of liquidation, dissolution or winding up of the affairs of the Corporation. If, upon any liquidation, dissolution or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of the shares of Senior Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any Parity Securities, then such assets, or the proceeds thereof, shall be distributed among the holders of shares of Senior Preferred Stock and any such other Parity Securities ratably in accordance with the respective amounts that would be payable on such shares of Senior Preferred Stock and any such other stock if all amounts payable thereon were paid in full. For the purposes of this Section 4, (i) a consolidation or merger of the Corporation with one or more corporations, or (ii) a sale or transfer of all or substantially all of the Corporation's assets, shall not be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, of the Corporation. (b) Subject to the rights of the holders of any Parity Securities, after payment shall have been made in full to the holders of the Senior Preferred Stock, as provided in this paragraph (4), any other series or class or classes of Junior Securities shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Senior Preferred Stock shall not be entitled to share therein. (c) The Applicable Liquidation Value of any Additional Shares shall be the Liquidation Value of Senior Preferred Stock outstanding immediately prior to the first Dividend Payment Date occurring after a request for payment in Additional Shares has been made in accordance with Section 3(b). (5) Redemption. (a) Redemption Upon Consummation of Public Offering. The Corporation may, at its option, to the extent it shall have funds legally available for such payment, redeem, prior to May 15, 2001, in whole but not in part, shares of Senior Preferred Stock, at a redemption price per share equal to 113% of the Liquidation Value, in cash, plus accrued and unpaid cash dividends on such shares to the date fixed for redemption, without interest, provided that the Corporation shall not redeem any shares of Senior Preferred Stock pursuant to this Section 5(a) unless (i) prior to such redemption a Public Offering shall have been consummated, and (ii) the aggregate redemption price of the shares of Senior Preferred Stock redeemed pursuant to this Section 5(a) does not exceed the net proceeds received by the Corporation in such Initial Public Offering. "Public Offering" shall mean any underwritten public offering of Common Stock pursuant to an effective registration statement under the Securities Act of 1933, as amended, and shall, in addition, for the purposes of Section 5(a) hereof, include any sale, pursuant to such an underwritten registered public offering, following the Closing Date of any common stock by any affiliate of the Corporation, the net proceeds of which are contributed or loaned to the Corporation in such a manner that such proceeds may lawfully be used for the redemption of the Senior Preferred Stock. "Closing Date" shall have the meaning ascribed to such term in the Investors' Agreement. "Investors' Agreement" means the Investors' Agreement dated May __, 1998, among Thermadyne Holdings Corporation, DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding, Inc., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ EAB Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ ESC II, L.P. (collectively, the "DLJMB Funds"), and certain other stockholders listed on the signature pages thereof. (b) Redemption At the Option of the Corporation. On and after May 15, 2003, to the extent the Corporation shall have funds legally available for such payment, the Corporation may, at its option, redeem shares of Senior Preferred Stock, at any time in whole but not in part, at redemption prices per share in cash set forth in the table below, together with accrued and unpaid cash dividends thereon to the date fixed for redemption, without interest: Twelve Months Beginning May 15, Percentage of Liquidation Value ----------------------- ------------------------------- 2003 106.500% 2004 104.333 2005 102.167 2006 100.000 (c) Redemption In the Event of a Change of Control. In the event of a Change of Control, the Corporation shall, to the extent it shall have funds legally available for such payment, offer to redeem all of the shares of Senior Preferred Stock then outstanding, and shall redeem the shares of Senior Preferred Stock of any holder of such shares that shall consent to such redemption, upon a date no later than 30 days following the Change in Control, at a redemption price per share equal to 101% of the Liquidation Value, in cash, plus accrued and unpaid cash dividends thereon to the date fixed for redemption, without interest. "Change of Control" means such time as: (a) a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended), other than any person or group comprised solely of the Initial Investors, has become the beneficial owner, by way of merger, consolidation or otherwise, of 30% or more of the voting power of all classes of voting securities of the Corporation, and such person or group has become the beneficial owner of a greater percentage of the voting power of all classes of voting securities of the Corporation than that beneficially owned by the Initial Investors; or (b) a sale or transfer of all or substantially all of the assets of the Corporation to any person or group (other than any group consisting solely of the Initial Investors or their affiliates) has been consummated; or (c) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Corporation (together with any new directors whose election was approved by a vote of a majority of the directors then still in office, who either were directors at the beginning of such period or whose election or nomination for the election was previously so approved) cease for any reason to constitute a majority of the directors of the Corporation, then in office. "Initial Investors" means the Stockholders (determined as of the issuance of the Preferred Stock) and their Permitted Transferees, each as defined in the Investors' Agreement. (d) Mandatory Redemption. To the extent the Corporation shall have funds legally available for such payment, on May 15, 2010, if any shares of the Senior Preferred Stock shall be outstanding, the Corporation shall redeem all outstanding shares of the Senior Preferred Stock, at a redemption price equal to the aggregate Liquidation Value, in cash, together with any accrued and unpaid cash dividends thereon to the date fixed for redemption, without interest. (e) Status of Redeemed Shares. Shares of Senior Preferred Stock which have been issued and reacquired in any manner, including shares purchased or redeemed, shall (upon compliance with any applicable provisions of the laws of the State of Delaware) have the status of authorized and unissued shares of the class of Preferred Stock undesignated as to series and may be redesignated and reissued as part of any series of the Preferred Stock; provided that no such issued and reacquired shares of Senior Preferred Stock shall be reissued or sold as Senior Preferred Stock. (f) Failure to Redeem. If the Corporation is unable or shall fail to discharge its obligation to redeem all outstanding shares of Senior Preferred Stock pursuant to paragraph (5)(c) or 5(d) (each, a "Mandatory Redemption Obligation"), such Mandatory Redemption Obligation shall be discharged as soon as the Corporation is able to discharge such Mandatory Redemption Obligation. If and so long as any Mandatory Redemption Obligation with respect to the Senior Preferred Stock shall not be fully discharged, the Corporation shall not (i) directly or indirectly, redeem, purchase, or otherwise acquire any Parity Security or discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of any Parity Securities (except in connection with a redemption, sinking fund or other similar obligation to be satisfied pro rata with the Senior Preferred Stock) or (ii) in accordance with paragraph 3(e), declare or make any Junior Securities Distribution, or, directly or indirectly, discharge any mandatory or optional redemption, sinking fund or other similar obligation in respect of the Junior Securities. (g) Failure to Pay Dividends. Notwithstanding the foregoing provisions of this paragraph (5), unless full cumulative cash dividends (whether or not declared) on all outstanding shares of Senior Preferred Stock shall have been paid or contemporaneously are declared and paid or set apart for payment for all dividend periods terminating on or prior to the applicable redemption date, none of the shares of Senior Preferred Stock shall be redeemed, and no sum shall be set aside for such redemption, unless shares of Senior Preferred Stock are redeemed pro rata. (6) Procedure for Redemption. (a) In the event the Corporation shall redeem shares of Senior Preferred Stock pursuant to Sections 5(a), (b) or (d), notice of such redemption shall be given by first class mail, postage prepaid, mailed not less than 30 days nor more than 60 days prior to the redemption date, to each holder of record of the shares to be redeemed at such holder's address as the same appears on the stock register of the Corporation; provided that neither the failure to give such notice nor any defect therein shall affect the validity of the giving of notice for the redemption of any share of Senior Preferred Stock to be redeemed except as to the holder to whom the Corporation has failed to give said notice or except as to the holder whose notice was defective. Each such notice shall state: (i) the redemption date; (ii) the number of shares of Senior Preferred Stock to be redeemed; (iii) the redemption price; (iv) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date. (b) In the case of any redemption pursuant to Sections 5(a), (b) or (d) hereof, notice having been mailed as provided in Section 6(a) hereof, from and after the redemption date (unless default shall be made by the Corporation in providing money for the payment of the redemption price of the shares called for redemption), dividends on the shares of Senior Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such share shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. (c) In the case of a redemption pursuant to Section 5(c) hereof, notice of such redemption shall be given by first class mail, postage prepaid, mailed not more than 10 days following the occurrence of the Change of Control and not less than 20 days prior to the redemption date, to each holder of record of the shares to be redeemed at such holder's address as the same appears on the stock register of the Corporation; provided that neither the failure to give such notice nor any defect therein shall affect the validity of the giving of notice for the redemption of any share of Senior Preferred Stock to be redeemed except as to the holder to whom the Corporation has failed to give said notice or except as to the holder whose notice was defective. Each such notice shall state: (i) that a Change of Control has occurred; (ii) the redemption date; (iii) the redemption price; (iv) that such holder may elect to cause the Corporation to redeem all or any of the shares of Senior Preferred Stock held by such holder; (v) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (vi) that dividends on the shares the holder elects to cause the Corporation to redeem will cease to accrue on such redemption date. Upon receipt of such notice, the holder shall, within 20 days of receipt thereof, return such notice to the Corporation indicating the number of shares of Senior Preferred Stock such holder shall elect to cause the Corporation to redeem, if any. (d) In the case of a redemption pursuant to Section 5(c) hereof, notice having been mailed as provided in Section 6(c) hereof, from and after the redemption date (unless default shall be made by the Corporation in providing money for the payment of the redemption price of the shares called for redemption), dividends on such shares of Senior Preferred Stock as the holder elects to cause the Corporation to redeem shall cease to accrue, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such share shall be redeemed by the Corporation at the redemption price aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. (7) Exchange. (a) Subject to the provisions of this paragraph (7) the Corporation may, at its option, at any time and from time to time on any Dividend Payment Date, exchange, to the extent it is legally permitted to do so, all, but not less than all, outstanding shares (and fractional shares) of Senior Preferred Stock, for Exchange Debentures, provided that (i) on or prior to the date of exchange the Corporation shall have paid to or declared and set aside for payment to the holders of outstanding shares of Senior Preferred Stock all accrued and unpaid cash dividends on shares of Senior Preferred Stock through the exchange date in accordance with the next succeeding paragraph; (ii) no event of default under the indenture (as defined in such indenture) governing the Exchange Debentures shall have occurred and be continuing; and (iii) no shares of Senior Preferred Stock are held on such date by the DLJMB Funds or any of their Affiliates, or any of their Permitted Transferees. The principal amount of Exchange Debentures deliverable upon exchange of a share of Senior Preferred Stock, adjusted as hereinafter provided, shall be determined in accordance with the Exchange Ratio (as defined below). Cash dividends on any shares of Senior Preferred Stock exchanged for Exchange Debentures which have accrued but have not been paid as of the date of exchange shall be paid in cash. In no event shall the Corporation issue Exchange Debentures in denominations other than $1,000 or in an integral multiple thereof. Cash will be paid in lieu of any such fraction of an Exchange Debenture which would otherwise have been issued (which shall be determined with respect to the aggregate principal amount of Exchange Debentures to be issued to a holder upon any such exchange). Interest will accrue on the Exchange Debentures from the date of exchange. Prior to effecting any exchange hereunder, the Corporation shall appoint a trustee to serve in the capacity contemplated by an indenture between the Corporation and such trustee, containing customary terms and conditions. The Exchange Ratio shall be, as of any Dividend Payment Date, $1.00 (or fraction thereof) of principal amount of Exchange Debenture for each $1.00 of (i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if any, per share of Senior Preferred Stock held by a holder on the applicable exchange date. "Affiliates" shall have the meaning ascribed such term in the Investors' Agreement. "Exchange Debentures" means 13% Subordinated Exchange Debentures due 2010 of the Corporation, to be issued pursuant to an indenture between the Corporation and a trustee, containing customary terms and conditions, in accordance with the Term Sheet attached as Exhibit A hereto. "Permitted Transferees" shall have the meaning ascribed to such term in the Investors' Agreement. (b) Procedure for Exchange. (i) In the event the Corporation shall exchange shares of Senior Preferred Stock, notice of such exchange shall be given by first class mail, postage prepaid, mailed not less than 30 days nor more than 60 days prior to the exchange date, to each holder of record of the shares to be exchanged at such holder's address as the same appears on the stock register of the Corporation; provided that neither the failure to give such notice nor any defect therein shall affect the validity of the giving of notice for the exchange of any share of Senior Preferred Stock to be exchanged except as to the holder to whom the Corporation has failed to give said notice or except as to the holder whose notice was defective. Each such notice shall state: (A) the exchange date; (B) the number of shares of Senior Preferred Stock to be exchanged; (C) the Exchange Ratio; (D) the place or places where certificates for such shares are to be exchanged for notes evidencing the Exchange Debentures to be received by the exchanging holder; and (E) that dividends on the shares to be exchanged will cease to accrue on such exchange date. (ii) Prior to giving notice of intention to exchange, the Corporation shall execute and deliver with a bank or trust company selected by the Corporation an indenture containing customary terms and conditions. The Corporation will cause the Exchange Debentures to be authenticated on the Dividend Payment Date on which the exchange is effective, and will pay interest on the Exchange Debentures at the rate and on the dates specified in such indenture from the exchange date. The Corporation will not give notice of its intention to exchange under paragraph 6(b)(i) hereof unless it shall file at the place or places (including a place in the Borough of Manhattan, The City of New York) maintained for such purpose an opinion of counsel (who may be an employee of the Corporation) to the effect that (i) the indenture has been duly authorized, executed and delivered by the Corporation, has been duly qualified under the Trust Indenture Act of 1939 (or that such qualification is not necessary) and constitutes a valid and binding instrument enforceable against the Corporation in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and subject to such other qualifications as are then customarily contained in opinions of counsel experienced in such matters), (ii) the Exchange Debentures have been duly authorized and, when executed and authenticated in accordance with the provisions of the indenture and delivered in exchange for the shares of Preferred Stock, will constitute valid and binding obligations of the Corporation entitled to the benefits of the indenture (subject as aforesaid), (iii) neither the execution nor delivery of the indenture or the Exchange Debentures nor compliance with the terms, conditions or provisions of such instruments will result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or agreement or instrument, known to such counsel, to which the Corporation or any of its subsidiaries is a party or by which it or any of them is bound, or any decree, judgment, order, rule or regulation, known to such counsel, of any court or governmental agency or body having jurisdiction over the Corporation and such subsidiaries or any of their properties, (iv) the Exchange Debentures have been duly registered for such exchange with the Securities and Exchange Commission under a registration statement that has become effective under the Securities Act of 1933 (the "Act") or that the exchange of the Exchange Debentures for the shares of Senior Preferred Stock is exempt from registration under the Act, and (v) the Corporation has sufficient legally available funds for such exchange such that such exchange is permitted under applicable law. (iii) Notice having been mailed as aforesaid, from and after the exchange date (unless default shall be made by the Corporation in issuing Exchange Debentures in exchange for the shares called for exchange), dividends on the shares of Senior Preferred Stock so called for exchange shall cease to accrue, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the Exchange Debentures and any rights such holder, upon the exchange, may have as a holder of the Exchange Debenture) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so exchanged (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such share shall be exchanged by the Corporation for the Exchange Debentures at the Exchange Ratio. In case fewer than all the shares represented by any such certificate are exchanged, a new certificate shall be issued representing the unexchanged shares without cost to the holder thereof. (iv) Each exchange shall be deemed to have been effected immediately after the close of business on the relevant Dividend Payment Date, and the person in whose name or names any Exchange Debentures shall be issuable upon such exchange shall be deemed to have become the holder of record of the Exchange Debentures represented thereby at such time on such Dividend Payment Date. (v) Prior to the delivery of any securities which the Corporation shall be obligated to deliver upon exchange of the Senior Preferred Stock, the Corporation shall comply with all applicable federal and state laws and regulations which require action to be taken by the Corporation. (c) The Corporation will pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of notes evidencing Exchange Debentures on exchange of the Senior Preferred Stock pursuant hereto; provided that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue or delivery of Exchange Debentures in a name other than that of the holder of the Senior Preferred Stock to be exchanged and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid. (8) Voting Rights. (a) The holders of record of shares of Senior Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this paragraph (8), as otherwise provided by law or as provided in the Investors' Agreement. (b) If and whenever (i) four consecutive or six quarterly cash dividends payable on the Senior Preferred Stock have not been paid in full, (ii) for any reason (including the reason that funds are not legally available for a redemption), the Corporation shall have failed to discharge any Mandatory Redemption Obligation (including a redemption in the Event of a Change of Control pursuant to Section 5(c) hereof), (iii) the Corporation shall have failed to provide the notice required by Section 6(c) hereof within the time period specified in such section or (iv) the Corporation shall have failed to comply with Sections 3(d), 3(e) or 8(c) hereof, (1) the number of directors then constituting the Board of Directors shall be increased by two and the holders of a majority of the outstanding shares of Senior Preferred Stock, together with the holders of shares of every other series of preferred stock upon which like rights have been conferred and are exercisable (resulting from either the failure to pay dividends or the failure to redeem) (any such series is referred to as the "Preferred Shares"), voting as a single class regardless of series, shall be entitled to elect the two additional directors to serve on the Board of Directors at any annual meeting of stockholders or special meeting held in place thereof, or at a special meeting of the holders of the Senior Preferred Stock and the Preferred Shares called as hereinafter provided. Whenever (i) all arrears in cash dividends on the Senior Preferred Stock and the Preferred Shares then outstanding shall have been paid and cash dividends thereon for the current quarterly dividend period shall have been paid or declared and set apart for payment, (ii) the Corporation shall have fulfilled its Mandatory Redemption Obligation, (iii) fulfilled its obligation to provide notice as specified in subsection (b)(iii) hereof, or (iv) the Corporation shall have complied with Sections 3(d), 3(e), or 8(c) hereof, as the case may be, then the right of the holders of the Senior Preferred Stock to elect such additional two directors shall cease (but subject always to the same provisions for the vesting of such voting rights in the case of any similar future (i) arrearage in six consecutive quarterly cash dividends, (ii) failure to fulfill any Mandatory Redemption Obligation, (iii) failure to fulfill the obligation to provide the notice required by Section 6(d) hereof within the time period specified in such section or (iv) failure to comply with Sections 3(d), 3(e), or 8(c)) and the terms of office of all persons elected as directors by the holders of the Senior Preferred Stock shall forthwith terminate and the number of the Board of Directors shall be reduced accordingly. At any time after such voting power shall have been so vested in the holders of shares of Senior Preferred Stock and the Preferred Shares, the secretary of the Corporation may, and upon the written request of any holder of Senior Preferred Stock (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of the Senior Preferred Stock and of the Preferred Shares for the election of the two directors to be elected by them as herein provided, such call to be made by notice similar to that provided in the Bylaws of the Corporation for a special meeting of the stockholders or as required by law. If any such special meeting required to be called as above provided shall not be called by the secretary within 20 days after receipt of any such request, then any holder of shares of Senior Preferred Stock may call such meeting, upon the notice above provided, and for that purpose shall have access to the stock books of the Corporation. The directors elected at any such special meeting shall hold office until the next annual meeting of the stockholders or special meeting held in lieu thereof if such office shall not have previously terminated as above provided. If any vacancy shall occur among the directors elected by the holders of the Senior Preferred Stock and the Preferred Shares, a successor shall be elected by the Board of Directors, upon the nomination of the then-remaining director elected by the holders of the Senior Preferred Stock and the Preferred Shares or the successor of such remaining director, to serve until the next annual meeting of the stockholders or special meeting held in place thereof if such office shall not have previously terminated as provided above. (c) Without the written consent of a majority of the outstanding shares of Senior Preferred Stock or the vote of holders of a majority of the outstanding shares of Senior Preferred Stock at a meeting of the holders of Senior Preferred Stock called for such purpose, the Corporation will not (i) amend, alter or repeal any provision of the Certificate of Incorporation (by merger or otherwise) so as to adversely affect the preferences, rights or powers of the Senior Preferred Stock; provided that any such amendment that decreases the dividend payable on or the Liquidation Value of the Senior Preferred Stock shall require the affirmative vote of holders of each share of Senior Preferred Stock at a meeting of holders of Senior Preferred Stock called for such purpose or written consent of the holder of each share of Senior Preferred Stock; or (ii) create, authorize or issue any class of stock ranking prior to, or on a parity with, the Senior Preferred Stock with respect to dividends or upon liquidation, dissolution, winding up or otherwise, or increase the authorized number of shares of any such class or series, or reclassify any authorized stock of the Corporation into any such prior or parity shares or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such prior or parity shares, except that the Corporation may, without such approval, create authorize and issue Parity Securities for the purpose of utilizing the proceeds from the issuance of such Parity Securities for the redemption or repurchase of all outstanding shares of Senior Preferred Stock in accordance with the terms hereof or of the Investors' Agreement.. (d) In exercising the voting rights set forth in this paragraph (8), each share of Senior Preferred Stock shall have one vote per share, except that when any other series of preferred stock shall have the right to vote with the Senior Preferred Stock as a single class on any matter, then the Senior Preferred Stock and such other series shall have with respect to such matters one vote per $25 of Liquidation Value or other liquidation preference. Except as otherwise required by applicable law or as set forth herein, the shares of Senior Preferred Stock shall not have any relative, participating, optional or other special voting rights and powers and the consent of the holders thereof shall not be required for the taking of any corporate action. (9) Reports. So long as any of the Senior Preferred Stock is outstanding, the Corporation will furnish the holders thereof with the quarterly and annual financial reports that the Corporation is required to file with the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 or, in the event the Corporation is not required to file such reports, reports containing the same information as would be required in such reports. (10) General Provisions. (a) The term "Person" as used herein means any corporation, limited liability company, partnership, trust, organization, association, other entity or individual. (b) The term "outstanding", when used with reference to shares of stock, shall mean issued shares, excluding shares held by the Corporation or a subsidiary. (c) The headings of the paragraphs, subparagraphs, clauses and subclauses used herein are for convenience of reference only and shall not define, limit or affect any of the provisions hereof. (d) Each holder of Senior Preferred Stock, by acceptance thereof, acknowledges and agrees that payments of dividends, interest, premium and principal on, and exchange, redemption and repurchase of, such securities by the Corporation are subject to restrictions on the Corporation contained in certain credit and financing agreements. FIFTH: No contract or transaction between the Corporation and one or more of its directors, officers, or stockholders or between the Corporation and any person (as used herein "person" means any other corporation, partnership, association, firm, trust, joint venture, political subdivision, or instrumentality) or other organization in which one or more of its directors, officers, or stockholders are directors, officers or stockholders, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee which authorizes the contract or transaction, or solely because his, her, or their votes are counted for such purpose, if: (i) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and the board of directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved, or ratified by the board of directors, a committee thereof (to the extent permitted by applicable law), or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes the contract or transaction. SIXTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation. SEVENTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide. EIGHTH: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Law, or (iv) for any transaction from which the director derived an improper personal benefit. Any repeal or amendment of this Article EIGHTH by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation arising from an act or omission occurring prior to the time of such repeal or amendment. In addition to the circumstances in which a director of the Corporation is not personally liable as set forth in the foregoing provisions of this Article EIGHTH, a director shall not be liable to the Corporation or its stockholders to such further extent as permitted by any law hereafter enacted, including without limitation any subsequent amendment to the Delaware Law. NINTH: (1) A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law. (2)(a) Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this Article NINTH shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this Article NINTH shall be a contract right. (b) The Corporation may, by action of its Board of Directors, provide indemnification to such of the officers, employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law. (3) The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under Delaware Law. (4) The rights and authority conferred in this Article NINTH shall not be exclusive of any other right which any person may otherwise have or hereafter acquire. (5) Neither the amendment nor repeal of this Article NINTH, nor the adoption of any provision of this Certificate of Incorporation or the bylaws of the Corporation, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall eliminate or reduce the effect of this Article NINTH in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification. TENTH: The Corporation expressly elects not to be governed by Section 203 of the Delaware Law. ELEVENTH: The Corporation reserves the right to amend this Certificate of Incorporation in any manner permitted by Delaware Law and, with the sole exception of those rights and powers conferred under the above Article NINTH, all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power. EXHIBIT A --------- SUMMARY OF TERMS OF INDENTURE FOR 13% SUBORDINATED EXCHANGE DEBENTURES Parties: Thermadyne Holdings Corporation (the "Corporation") and [ ], as trustee. Issue: 13% Exchange Debentures (the "Exchange Debentures") to be issued by the Corporation, at its option, in exchange for any or all the outstanding shares of 13% Senior Exchangeable Preferred Stock due 2010 (the "Senior Preferred Stock") issued on or about May 15, 1998 to DLJ Merchant Banking Partners II, L.P. and certain of its affiliates (the "DLJ Entities"). Maturity: May 15, 2010. Interest: 13% annual rate, payable semi-annually. Through the semi-annual interest payment period ending in May 2003, semi-annual interest will accrete on a compound basis (i.e. non-cash pay) and increase the face amount of the Exchange Debentures, thereafter interest will be payable in cash. Ranking: The Exchange Debentures will rank senior to all other subordinated debt, preferred stock and common equity of the Corporation. Optional Redemption: The Exchange Debentures will be redeemable at any time after May 15, 2003 at the option of the Corporation, in whole or in part, at the same redemption prices set forth in the desigination of the Senior Preferred Stock set forth in Article FOURTH, paragraph (c) of the Restated Certificate of Incorporation of the Surviving Corporation. Change of Control In the event of a Change of Control of the Repurchase Right: Corporation each holder of the Exchange Debentures will have the right to require the Corporation to repurchase all or any part of such holder's Exchange Debentures at a purchase price of 101% of the sum of the accreted value thereof plus accrued and unpaid cash interest, if any, to the repurchase date. Covenants: The Debentures will contain covenants that are substantially the same as the covenants contained in the Indenture of the [ ____ Senior Discount Debentures due 2008] of the Corporation and will limit, among other things, the ability of the Corporation and its subsidiaries (i) to incur additional indebtedness, (ii) to pay dividends and make other distributions on its capital stock, (iii) to repurchase its capital stock or warrants, options or other rights to acquire shares of its capital stock or any indebtedness subordinated to the Exchange Debentures, (iv) to make certain other restricted payments, (v) to make certain investments or asset sales, (vi) to engage in transactions with affiliates, (vii) to create liens, (viii) to permit "layering" of indebtedness and (ix) to merge or consolidate or transfer all or substantially all of its assets." 7. Except as specifically amended by this Amendment, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the Agreement as of this 22nd day of April, 1998. THERMADYNE HOLDINGS CORPORATION By: /s/ RANDALL E. CURRAN --------------------------- Name: Randall E. Curran Title: President MERCURY ACQUISITION CORPORATION By: /s/ WILLIAM F. DAWSON, JR. --------------------------- Name: William F. Dawson, Jr. Title: Vice President EX-8 5 EXHIBIT 8 AMENDMENT NO. 1 TO VOTING AGREEMENT AMENDMENT NO. 1 TO VOTING AGREEMENT (this "Amendment"), dated February 20, 1998, by and between Mercury Acquisition Corporation, a Delaware corporation ("MergerSub"), Thermadyne Holdings Corporation, a Delaware corporation (the "Company"), and the undersigned holders (each, a "Stockholder") of shares of Company Common Stock WHEREAS, MergerSub, the Company and the Stockholders are parties to a Voting Agreement dated as of January 20, 1998 (the "Voting Agreement"); and WHEREAS, the parties desire to amend a certain schedule of the Voting Agreement: NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein and in the Voting Agreement, the parties hereto agree as follows: 1. Schedule A of the Voting agreement is hereby amended to read in its entirety as follows: SCHEDULE A ---------- Shares of Company Stockholder Common Stock - ------------------------------- -------------------- Magten Asset Management Corp. 107,047 General Motors Employees 1,701,125 Domestic Group Pension Trust City of Los Angeles Fire and 519,000 Police Pension Systems Hughes Retirement Plans Trust 640,000 Navy Exchange Service Command 300,000 Retirement Trust Western Union Telegraph Company Pension Plan 250,601 ----------- 3,517,773 2. Except as specifically amended by this Amendment, the Voting Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to the Voting agreement as of this 20th day of February, 1998. MERCURY ACQUISITION CORPORATION By /s/ William F. Dawson ----------------------------------- Name: William F. Dawson Title: Vice President and Secretary THERMADYNE HOLDINGS CORPORATION By /s/ James H. Tate ----------------------------------- Name: James H. Tate Title: Senior Vice President and Chief Financial Officer 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 ----------------------------------- Name: Bernadette Rist Title: Authorized Signatory MAGTEN ASSET MANAGEMENT CORP. By /s/ Talton S. Embry ----------------------------------- Name: Talton S. Embry Title: Chairman 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 S. Embry ----------------------------------- Name: Talton S. Embry Title: Chairman -----END PRIVACY-ENHANCED MESSAGE-----