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 XX-X, X.X.,
XXX XXXXXXXX XXXXXXXX XX, X.X.,
XXX 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
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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 Xxxxxxx X. Xxxxxx or
Xxxxx X. Xxxx.
"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 XXX
Xxxxxxxx, XXX Xxxxxxxxxx, XXX 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 Xxxxxxx X. Xxxxxx and
one of whom will be Xxxxx X. Xxxx, 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, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx 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
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000
Attention: Xxxxx X. Xxxx
Xxxxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxx Xxxxx
Fax: (000) 000-0000
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.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
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
XXXXXXXXX, XXXXXX & XXXXXXXX,
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:
---------------------------
Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxx
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Xxxxxxx X. Xxxxxxx
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Xxxx X. XxXxxxxxx
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Xxxxxxx X. X'Xxxxxxx
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Xxxxx X. Xxxxxx
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Xxxx X. Xxxxxxxxxxx, Xx.
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Xxxxxx Klanjscek
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Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxxxxxx
