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EXHIBIT 99.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated January 20,
1998, by and between Thermadyne Holdings Corporation, a Delaware corporation
(the "Company"), and BankBoston, N.A. (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement dated May 1, 1997 (the "Rights Agreement"); and
WHEREAS, the Company desires to amend certain provisions of the Rights
Agreement;
WHEREAS, Section 26 of the Rights Agreement provides that under
circumstances the Company may, in its sole and absolute discretion, supplement
or amend the Rights Agreement;
WHEREAS, the Company has determined that it may amend the Rights Agreement
as set forth in this Amendment; and
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein and in the Rights Agreement, the parties hereto agree as
follows:
ARTICLE I
AMENDMENT OF RIGHTS AGREEMENT
Section 1.1 Definition of Acquiring Person. Section 1(a) of the Rights
Agreement is hereby amended to add the following sentence at the end of Section
1(a):
Notwithstanding anything to the contrary contained in this
Agreement, the term "Acquiring Person" shall not include Mercury
Acquisition Corporation, a Delaware corporation ("Mercury"), or any
of its Affiliates or Associates in the event that Mercury and its
Affiliates or Associates become the
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Beneficial Owner of shares of the Voting Stock pursuant to the
transactions contemplated by that certain Agreement and Plan of
Merger, dated January 20, 1998 (the "Merger Agreement"), between
the Company and Mercury, as the same may be amended, supplemented
or otherwise modified from time to time.
Section 1.2 Adjustment of Exercise Price or Number of Shares or Rights.
Section 11 of the Rights Agreement is hereby amended to add the following
paragraph at the end of Section 11:
(n) Notwithstanding the foregoing, the adjustments to the
Exercise Price, the number of shares that may be purchased
upon exercise of a Right and the number of Rights outstanding
provided for in this Section 11 shall not be applicable to the
transactions contemplated by the Merger Agreement or any
financing or any issuance of securities by Mercury, the
Company or any direct or indirect subsidiary of any thereof in
connection with the transactions contemplated by the Merger
Agreement.
Section 1.3 Governing Law. Section 30 of the Rights Agreement is hereby
amended to read in its entirety as follows:
Section 30. Delaware Contract. This Rights Agreement and
each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed and enforced in
accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state.
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ARTICLE II
MISCELLANEOUS
Section 2.1 Defined Terms. All capitalized terms used and not defined
herein shall have the meanings ascribed to such terms in the Rights Agreement as
hereby amended.
Section 2.2 Reference to and Effect on the Rights Agreement.
.2.0.0.0.1 On and after the date hereof, each reference
in the Rights Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Rights Agreement shall
mean and be a reference to the Rights Agreement as hereby amended.
.2.0.0.0.2 Except as specifically amended by this Amendment,
the Rights Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
Section 2.3 Successors. All of the covenants and provisions of this
Amendment by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 2.4 Delaware Contract. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed and enforced in accordance with the laws of such
state applicable to contracts to be made and performed entirely within such
state.
Section 2.5 Counterparts. This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 2.6 Descriptive Headings. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section 2.7 Severability. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this
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Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 2.8 Entire Agreement. This Amendment, together with the
unaltered portions of the Rights Agreement, embodies the entire agreement and
understanding of the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
THERMADYNE HOLDINGS CORPORATION
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx,
Senior Vice President and Chief
Financial Officer
BANKBOSTON, N.A.
By: /s/ XXXXX XXXXXX-XXXX
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Name: Xxxxx Xxxxxx-Xxxx
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Title: Administration Manager
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