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EXHIBIT 2.3
VOTING AGREEMENT
In consideration of Mercury Acquisition Corporation, a Delaware
corporation ("MERGERSUB") and Thermadyne Holdings Corporation, a Delaware
corporation (the "COMPANY"), entering into on the date hereof an
Agreement and Plan of Merger dated as of the date hereof (the "MERGER
AGREEMENT") which provides, among other things, that MergerSub, upon the terms
and subject to the conditions thereof, will be merged with and into the Company
(the "MERGER") and each outstanding share of common stock, $0.01 par value, of
the Company (the "COMPANY COMMON STOCK") will be converted into the right to
receive the Merger Consideration (as defined in the Merger Agreement) in
accordance with the terms of such Agreement, the undersigned holder (the
"STOCKHOLDER") of shares of Company Common Stock agrees with MergerSub as
follows:
1. During the period (the "AGREEMENT PERIOD") beginning on the date
hereof and ending on the earlier of (i) the Effective Time (as defined in the
Merger Agreement), (ii) the date that is 90 days after the termination of the
Merger Agreement in accordance with Section 9.01(c) (in the case of a
termination by MergerSub), (e), (f) or (g) thereof and payment in full of all
amounts (if any) payable to MergerSub pursuant to Section 5.04 of the Merger
Agreement, (iii) the date of termination of the Merger Agreement for any other
reason and (iv) June 30, 1998, the Stockholder hereby agrees to vote the shares
of Company Common Stock set forth opposite its name in Schedule A hereto (the
"SCHEDULE A SECURITIES") to approve and adopt the Merger Agreement and the
Merger(provided that the Stockholder shall not be required to vote in favor of
the Merger Agreement or the Merger if the Merger Agreement has, without the
consent of the Stockholder, been amended in any manner that is material and
adverse to such Stockholder) and any actions directly and reasonably related
thereto at any meeting or meetings of the stockholders of the Company, and at
any adjournment thereof or pursuant to action by written consent, at or by
which such Merger Agreement, or such other actions, are submitted for the
consideration and vote of the stockholders of the Company so long as such
meeting is held (including any adjournment thereof) or written consent adopted
prior to the termination of the Agreement Period.
2. During the Agreement Period, the Stockholder hereby agrees that
it will not vote any of the Stockholder's Schedule A Securities in favor of the
approval of any other merger, consolidation, sale of assets, reorganization,
recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company or any matters related to or in
connection therewith, or any corporate action relating to or the consummation
of which would either frustrate the purposes of, or prevent or delay the
consummation of, the transactions contemplated by the Merger Agreement.
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3. From the date hereof until the termination hereof, the
Stockholder will not, directly or indirectly, (i) take any action to solicit,
initiate or encourage any Acquisition Proposal or (ii) engage in negotiations
or discussions with, or disclose any nonpublic information relating to the
Company or any Subsidiary or afford access to the properties, books or records
of the Company or any Subsidiary to, or otherwise assist, facilitate or
encourage, any Third Party that may be considering making, or has made, an
Acquisition Proposal. The Stockholder will promptly notify MergerSub after
receipt of any Acquisition Proposal or any indication from any Third Party that
it is considering making an Acquisition Proposal or any request for nonpublic
information relating to the Company or any Subsidiary or for access to the
properties, books or records of the Company or any Subsidiary by any Third
Party that may be considering making, or has made, an Acquisition Proposal and
will keep MergerSub fully informed of the status and details of any such
Acquisition Proposal, indication or request.
4. The Stockholder agrees not to exercise any rights (including,
without limitation, under Section 262 of the Delaware Law) to demand appraisal
of any shares of Company Common Stock owned by the Stockholder.
5. The Stockholder hereby represents and warrants to MergerSub that
as of the date hereof:
(a) the Stockholder (i) owns beneficially all of the shares of
Company Common Stock set forth opposite the Stockholder's name in Schedule A
hereto, (ii) has the full and unrestricted legal power, authority and right to
enter into, execute and deliver this Voting Agreement without the consent or
approval of any other person and (iii) has not entered into any voting
agreement with or granted any person any proxy (revocable or irrevocable) with
respect to such shares (other than this Voting Agreement).
(b) This Voting Agreement is the valid and binding agreement of the
Stockholder.
(c) No investment banker, broker or finder is entitled to a
commission or fee from the Stockholder or the Company in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of the
Stockholder.
6. If any provision of this Voting Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the
extent of such invalidity or unenforceability only, without in any way
affecting the remaining provisions of this Voting Agreement.
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7. This Voting Agreement may be executed in two or more
counterparts each of which shall be an original with the same effect as if the
signatures hereto and thereto were upon the same instrument.
8. The parties hereto agree that if for any reason any party
hereto shall have failed to perform its obligations under this Voting
Agreement, then the party seeking to enforce this Agreement against such
non-performing party shall be entitled to specific performance and injunctive
and other equitable relief, and the parties hereto further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such-injunctive or other equitable relief. This provision is
without prejudice to any other rights or remedies, whether at law or in equity,
that any party hereto may have against any other party hereto for any failure
to perform its obligations under this Voting Agreement.
9. This Voting Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10. The Stockholder will, upon request, execute and deliver any
additional documents deemed by MergerSub to be necessary or desirable to
complete and effectuate the covenants contained herein.
11. This Agreement shall terminate upon the termination of the
Agreement Period.
12. The Stockholder agrees that if it sells, transfers, assigns,
encumbers or otherwise disposes (each a "TRANSFER") of any Schedule A
Securities (whether to an affiliate or otherwise), it shall require the
transferee of such Schedule A Securities to execute and deliver to MergerSub
and the Company a voting agreement identical in form to this Voting Agreement
except for the identity of the Stockholder prior to or concurrent with the
consummation of such Transfer. MergerSub and the Company understand and
acknowledge that, subject to the preceding sentence, the Stockholder is free to
Transfer any Schedule A Securities at such times and in such manner as it deems
appropriate.
13. MergerSub and the Company understand and agree that this
Agreement pertains only to Stockholder and not to any of its affiliates, if
any, or adviser.
14. MergerSub and the Company severally and not jointly represent
and warrant to the Stockholder that there is no agreement, understanding or
commitment, written or oral, to pay any consideration directly or indirectly in
connection with the Merger or otherwise to or for the benefit of any holder of
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Company Common Stock or options thereon other than as set forth in the Merger
Agreement (except, in the case of directors, employees, agents, customers,
suppliers or contractors of the Company who are also holders, such
consideration as is payable by the Company in the ordinary course of business
and except for amounts payable to officers, directors or employees in
connection with or pursuant to any options, or option, stock purchase, stock
ownership or other employee benefit plans). All other voting agreements signed
with existing shareholders prior to or concurrently herewith are substantially
identical to this Agreement.
Neither MergerSub nor the Company will enter into any agreement with
any other stockholder having a purpose or effect substantially similar to that
of this Agreement on financial terms (with respect to such other stockholder)
more favorable than the terms of this Agreement.
15. MergerSub agrees that it will pay upon request the reasonable
fees and expenses (including fees and expenses of counsel for the Stockholder)
of Stockholder incurred in connection with the Voting Agreement or the Merger
in an amount not to exceed $5,000, or in the event the Stockholder becomes
iinvolved in litigation, $15,000 in the aggregate.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of this 20th day of January, 1998.
MERCURY ACQUISITION CORPORATION
By /s/ XXXXX X. XXXXXX
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Name:
Title:
THERMADYNE HOLDINGS
CORPORATION
By /s/ XXXXXXX ECURRAN
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Name:
FIDELITY CAPITAL & INCOME
FUND
By /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
Fidelity Capital & Income Fund ("STOCKHOLDER") is a portfolio of a
Massachusetts business trust. A copy of the Stockholder's Declaration of Trust
(under the name Fidelity Summer Street Trust) is on file with the Secretary of
State of the Commonwealth of Massachusetts. Each of the parties hereto
acknowledges and agrees that this Agreement is not executed on behalf of the
trustees of the Stockholder as individuals, and the obligations of this
Agreement are not binding upon any of the trustees, officers or shareholders of
the Stockholder individually, but are binding only upon the assets and property
of the Stockholder. MergerSub agrees that no shareholder, trustee or officer
of the Stockholder may be held personally liable or responsible for any
obligations of the Stockholder arising out of this Agreement. With respect to
obligations of the Stockholder arising out of this Agreement, MergerSub shall
look for payment or satisfaction of any claim solely to the assets and property
of the Stockholder. MergerSub is expressly put on notice that the rights and
obligations of each series
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of shares of the Stockholder under its Declaration of Trust are separate and
distinct from those of any and all other series.
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SCHEDULE A
Shares of Company
Stockholder Common Stock
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Fidelity Capital & Income Fund 2,424,935
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