Exhibit 4.5
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WARRANT AGREEMENT
between
THERMADYNE HOLDINGS CORPORATION
and
EQUISERVE TRUST COMPANY, N.A.
as Warrant Agent
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700,000 Class B Warrants to Purchase Common Stock
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Dated as of May 23, 2003
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This Warrant Agreement (this "Warrant Agreement"), dated as of May __,
2003, is made by and between Thermadyne Holdings Corporation, a Delaware
corporation (the "Company"), and EquiServe Trust Company, N.A., a national
association, as warrant agent (the "Warrant Agent").
PRELIMINARY STATEMENTS
A. The Company proposes to issue 700,000 Class B warrants (the
"Warrants") to purchase Common Stock (as defined below) pursuant to the
Company's Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code
(the "Plan"), as confirmed pursuant to the order, dated April 3, 2003, of the
United States Bankruptcy Court for the Eastern District of Missouri, and the
terms and conditions of this Warrant Agreement.
B. The Company has requested the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, division, transfer, exchange and exercise of Warrants pursuant to
the terms and conditions of this Warrant Agreement.
Now, therefore, in consideration of the foregoing and for the purpose
of defining the terms and provisions of the Warrants and the respective rights
and obligations thereunder and hereunder of the Company, the Warrant Agent, and
the Holders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and affirmed, the Company and the
Warrant Agent hereby agree as follows:
STATEMENT OF AGREEMENT
1. Definitions.
As used in this Warrant Agreement, the following capitalized terms have
the respective meanings set forth below:
"Business Day" shall mean any day that is not a Saturday or Sunday or a
day on which banks are required or permitted to be closed in the State of New
York or the State of Delaware.
"Common Stock" shall mean the common stock, $0.01 par value per share.
"Company" shall have the meaning assigned to such term in the preamble
of this Warrant Agreement.
"Exercise Price" shall mean $20.78, the price at which a share of
Common Stock may be purchased pursuant to this Warrant Agreement, as such price
may be adjusted pursuant to Section 6 of this Agreement.
"Expiration Date" shall mean the third anniversary of the date hereof.
"Holder" shall mean the Person in whose name a Warrant is registered in
the warrant register of the Company maintained by or on behalf of the Company
for such purpose.
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"Majority Holders" shall mean the Holders of Warrants then outstanding,
exercisable for in excess of 50% of the aggregate number of shares of Common
Stock then purchasable upon exercise of all Warrants.
"Other Property" shall have the meaning set forth in Section 6.3.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, incorporated organization, association, corporation,
limited liability company, limited liability partnership, institution, public
benefit corporation, entity or government (whether federal, state, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"Plan" shall have the meaning assigned to such term in the recitals.
"Transaction" shall have the meaning set forth in Section 6.3.
"Warrant Agent" shall have the meaning assigned to such term in the
preamble of this Warrant Agreement and shall include any successor Warrant Agent
hereunder.
"Warrant Agent's Principal Office" shall mean the principal office of
the Warrant Agent at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (or such
other office of the Warrant Agent or any successor thereto hereunder acceptable
to the Company as set forth in a written notice provided to the Company and the
Holders).
"Warrant Agreement" shall have the meaning assigned to such term in the
preamble of this Warrant Agreement.
"Warrant Price" shall mean an amount equal to (i) the number of shares
of Common Stock being purchased upon exercise of a Warrant pursuant to Section
4.1, multiplied by (ii) the Exercise Price.
"Warrant Stock" shall mean the shares of Common Stock purchased by the
Holders of the Warrants upon the exercise thereof.
"Warrants" shall have the meaning assigned to such term in the recitals
to this Warrant Agreement, and shall include all Warrants issued upon
registration of transfer, division or combination of, or in substitution for,
any thereof. All Warrants shall at all times be identical as to terms and
conditions and date, except as to the number of shares of Common Stock for which
they may be exercised.
2. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth in this Warrant Agreement, and the Warrant Agent hereby
accepts such appointment.
3. Issuance; Registration; Form and Execution of Warrants.
3.1 Issuance. The Company hereby authorizes the Warrants
and issues and grants to the Holders listed on Schedule A hereto the number of
Warrants set forth opposite the
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name of such Holder on Schedule A attached hereto under the heading "Aggregate
Number of Warrants." Each Warrant shall entitle the Holder, subject to the
satisfaction of the conditions to exercise set forth in Section 4 of this
Warrant Agreement, to purchase from and after the date hereof and until 5:00
p.m., New York City time, on the Expiration Date one share of Common Stock of
the Company at the Exercise Price. The number of Warrants issued to Holder
pursuant to this Warrant Agreement, the number of shares of Common Stock
issuable on exercise of each Warrant and the Exercise Price are all subject to
adjustment pursuant to Section 6 of this Warrant Agreement.
3.2 Registration. The Warrants shall be issued in
registered form only. All Warrants shall be numbered and shall be registered in
a warrant register maintained at the Warrant Agent's Principal Office by the
Warrant Agent as they are issued. The Company and the Warrant Agent shall be
entitled to treat a Holder as the owner in fact for all purposes whatsoever of
each Warrant registered in such Holder's name.
3.3 Form of Warrant. The text of each Warrant, the Form
of Election to Purchase and Form of Assignment shall be substantially in the
form attached hereto as Exhibit A. Each Warrant shall be executed on behalf of
the Company by its President or one of its Vice Presidents. The signatures on
the Warrants may be manual or facsimile. Warrants bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
one of them shall have ceased to hold such offices prior to the delivery of such
Warrants or did not hold such offices on the date of this Warrant Agreement.
Warrants shall be dated as of the date of countersignature thereof by the
Warrant Agent either upon initial issuance or upon division, exchange,
substitution, registration of transfer.
3.4 Countersignature of Warrants. Each Warrant shall be
manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. Warrants may be countersigned, however, by the
Warrant Agent and may be delivered by the Warrant Agent, notwithstanding that
the persons whose manual signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature, issuance or delivery.
4. Exercise of Warrants.
4.1 Manner of Exercise. From and after the date hereof
until 5:00 p.m., New York City time, on the Expiration Date, a Holder may
exercise any of the Warrants, on any Business Day, for all or any part of the
number of shares of Common Stock purchasable thereunder. In order to exercise a
Warrant, in whole or in part, a Holder shall deliver to the Company at the
Warrant Agent's Principal Office, (i) a written notice of such Holder's election
to exercise such Warrant, which notice shall include the number of shares of
Common Stock to be purchased, (ii) payment of the Warrant Price in immediately
available funds, certified cashiers or official bank check, or any combination
thereof, in each case in United States dollars for the account of the Company
and (iii) such Warrant. Such notice shall be substantially in the form of the
Election to Purchase attached hereto as Exhibit A, duly executed by such Holder
or its agent or attorney. Upon receipt thereof, the Warrant Agent shall, as
promptly as practicable, and in any event within 3 Business Days thereafter,
deliver or cause to be delivered to such Holder an
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executed certificate or certificates representing the aggregate number of full
shares of Common Stock issuable upon such exercise. The stock certificate or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as such Holder shall request in the notice and shall be
registered in the name of such Holder or such other name as shall be designated
in such notice. A Warrant shall be deemed to have been exercised and such
certificate or certificates shall be deemed to have been issued, and such Holder
or any other Person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date such
notice, together with payment of the Warrant Price and such Warrant, is received
by the Warrant Agent as described above and all taxes required to be paid by
such Holder, if any, pursuant to Section 4.2 have been paid. If any Warrant
shall have been exercised in part, the Warrant Agent shall, at the time of
delivery of the certificate or certificates representing Warrant Stock, deliver
to the Holder a new Warrant evidencing the rights of such Holder to purchase the
unpurchased shares of Common Stock called for by such Warrant, which new Warrant
shall in all other respects be identical with the Warrant exercised in part, or,
at the request of such Holder, appropriate notation may be made on such
exercised Warrant and the same returned to such Holder. Notwithstanding any
provision herein to the contrary, the Warrant Agent shall not be required to
cause to be issued shares in the name of any Person who acquired a Warrant (or
part thereof) or any Warrant Stock otherwise than in accordance with such
Warrant and this Warrant Agreement.
4.2 Payment of Taxes. The Company shall pay all expenses
and costs in connection with the issuance or delivery of the Warrants. The
Holder shall be responsible for any taxes or other governmental charges imposed
on such Holder with respect to the issuance or delivery of the Warrants.
4.3 Fractional Shares. The Company shall not issue
fractional shares of Common Stock upon exercise of any Warrant. Whenever any
distribution of Warrants exercisable into fractional shares of Common Stock
would otherwise be called for, the actual distribution thereof shall be rounded
as follows: (i) fractions of 1/2 or greater shall be rounded to the next higher
whole number and (ii) fractions of less than 1/2 shall be rounded to the next
lower whole number.
5. Transfer; Division and Combination.
5.1 Transfer. Subject to the following provisions of this
Section 5.1, the Warrants are transferable, in whole or in part upon surrender
of the Warrant substantially in the form attached hereto as Exhibit A evidencing
such Warrants at the Warrant Agent's Principal Office, together with an
Assignment of such Warrant substantially in the form attached hereto as Exhibit
A duly executed by the Holder or its agent or attorney and payment of all funds
sufficient to pay any taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, and subject to Section 9, the Company
shall execute, register or cause the registration of the transfer upon the books
maintained by the Warrant Agent and the Warrant Agent shall countersign and
deliver a new Warrant or Warrants in the name of the assignee or assignees and
in the denomination specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of such Warrant not so
assigned, and the surrendered Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new Holder for the purchase of shares
of Common Stock without having a new Warrant issued.
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5.2 Division and Combination. Any Warrant may be divided
or combined with other Warrants upon presentation thereof at the Warrant Agent's
Principal Office, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 5.1, as to any
transfer which may be involved in such division or combination, the Company
shall execute and the Warrant Agent shall countersign and deliver a new Warrant
or Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
5.3 Maintenance of Books. The Warrant Agent agrees to
maintain, at the Warrant Agent's Principal Office, the warrant register for the
registration of warrants and the registration of transfer of the Warrants.
6. Adjustments. The number of shares of Warrant Stock for which a
Warrant is exercisable, and the Exercise Price shall be subject to adjustment
from time to time as set forth in this Section 6.
6.1 Stock Dividends, Subdivisions and Combinations. If at
any time the Company shall: (i) take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend payable in, or other
distribution of, additional shares of Common Stock; (ii) subdivide its
outstanding shares of Common Stock into a larger number of shares of Common
Stock, or (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then (a) the number of shares of Common Stock
for which a Warrant is exercisable immediately after the occurrence of any such
event shall be adjusted to equal the number of shares of Common Stock that a
record holder of the same number of shares of Common Stock for which a Warrant
is exercisable immediately prior to the occurrence of such event would own or be
entitled to receive after the happening of such event and (b) the Exercise Price
shall be adjusted to equal (1) the Exercise Price multiplied by the number of
shares of Common Stock for which a Warrant is exercisable immediately prior to
the adjustment divided by (2) the number of shares for which a Warrant is
exercisable immediately after such adjustment.
6.2 Other Provisions Applicable to Adjustments under this
Section. The following provisions shall be applicable to the making of
adjustments of the number of shares of Common Stock for which a Warrant is
exercisable and the Exercise Price provided for in this Section 6:
(a) When Adjustments to Be Made. The adjustments
required by this Section 6 shall be made whenever and as often as any specified
event requiring an adjustment shall occur, except that any adjustment of the
number of shares of Common Stock for which a Warrant is exercisable that
otherwise would be required may be postponed (except in the case of a
subdivision or combination of shares of Common Stock, as provided for in Section
6.1) up to, but not later than the date of exercise if such adjustment either by
itself or with other adjustments not previously made would result in an increase
or decrease, as the case may be, of less than 1% of the shares of Common Stock
for which a Warrant is exercisable immediately prior to the
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making of such adjustment. Any adjustment representing a change of less than
such minimum amount (except as aforesaid) which is postponed shall be carried
forward and made as soon as such adjustment, together with other adjustments
required by this Section 6 and not previously made, would result in a minimum
adjustment or on the date of exercise. For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close of business on the
date of its occurrence.
(b) Fractional Interests. In computing
adjustments pursuant to this Section 6, fractional interests in Common Stock
shall be taken into account to the nearest 1/1000th of a share.
6.3 Reorganization, Reclassification, Merger,
Consolidation or Sale of Substantially all Assets of the Company. If the Company
(or any other entity, the stock or other securities of which are at the time
receivable on the exercise of the Warrants) shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another Person
(where the Company is not the surviving corporation or resulting entity) or
where there is a change in or distribution with respect to the Common Stock of
the Company (other than as a result of a stock dividend, stock split, reverse
stock split, recapitalization or the like provided for in Section 6.1 above)
(each such event hereinafter referred to as a "Transaction"), and pursuant to
the terms of any such Transaction, the consideration to be paid or distributed
to or otherwise received by the holders of Common Stock consists of shares of
common stock of the surviving corporation or resulting entity and/or any cash,
shares of stock (not constituting common stock) or other securities or property
of any nature whatsoever (including warrants or other subscription or purchase
rights) (such non-common stock property hereinafter referred to as "Other
Property"), then each Holder shall receive, upon exercise of a Warrant, the
number of shares of common stock of the surviving corporation or resulting
entity and such amount of Other Property receivable pursuant to such Transaction
by a holder of the number of shares of Warrant Stock for which a Warrant is
exercisable immediately prior to the effective time of such Transaction. In the
case of any Transaction of the type described in the preceding sentence, it
shall be a condition precedent to consummation of the Transaction that the
surviving corporation or resulting entity expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Warrant Agreement and the Warrants to be performed and observed by the Company
and all the obligations and liabilities hereunder, subject to such modifications
as may be deemed appropriate (as determined by resolution of the Board of
Directors of the Company) in order to provide for adjustments of shares of the
Warrant Stock for which a Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 6.3.
For purposes of this Section 6.3, "common stock of the surviving corporation or
resulting entity" shall include stock of such corporation of any class which
does not have a preference as to dividends or assets over any other class of
stock of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities which
are convertible into or exercisable or exchangeable for any such stock, either
immediately, after the lapse of any prescribed time period or the occurrence of
a specified event, and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 6.3 shall similarly
apply to successive Transactions.
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6.4 Below Value Issuances of Common Stock. In addition to
any other anti-dilution rights set forth in this Section 6, if the Company shall
issue any shares of Common Stock (or any security convertible into, or
exercisable or exchangeable for, any shares of Common Stock) for a value less
than the then current fair market value of the Common Stock, as determined in
good faith by the Company's Board of Directors, then there shall be a concurrent
fair and equitable adjustment of the number of shares of Common Stock for which
a Warrant is exercisable and the Exercise Price thereof (such fair and equitable
adjustment to be determined in good faith by the Company's Board of Directors);
provided, that the provisions of this sentence do not apply to any securities
issued or issuable (a) pursuant to the terms of any warrant, option or other
convertible or exchangeable security issued in connection with the Plan, (b) to
any vendor, customer, lessor or lender in connection with any commercial
transaction, lease arrangement or financing approved by the Company's Board of
Directors, (c) to directors, officers or employees of, or consultants to, the
Company under any Company stock purchase, compensation, incentive or other
similar plan, (d) in connection with any merger, consolidation, acquisition or
similar transaction with any entity or entities that are not affiliates (as such
term is defined in Rule 405 of the Securities Act of 1933) of the Company or its
executive officers or directors and is approved by the Board of Directors of the
Company, (e) in connection with any strategic alliance, including without
limitation, any joint venture and any manufacturing, development, marketing or
distribution arrangement with any entity or entities that are not affiliates (as
such term is defined in Rule 405 of the Securities Act of 1933) of the Company
or its executive officers or directors and is approved by the Board of Directors
of the Company, or (vi) in any of the transactions described in any of the other
provisions of this Section 6. Notwithstanding the foregoing, none of the
adjustments set forth in this Section 6.4 shall occur if the Company shall issue
Common Stock (or any security convertible into, or exercisable or exchangeable
for, any shares of Common Stock) for a value not less than 85% of fair market
value in connection with any public offering.
6.5 Certain Limitations. Notwithstanding anything herein
to the contrary, the Company agrees not to enter into any transaction which, by
reason of any adjustment hereunder, would cause the Exercise Price to be less
than the par value per share of Common Stock unless the Company shall take such
corporate action in order that the Company may validly and legally issue fully
paid and nonassessable shares of such Common Stock at such adjusted Exercise
Price.
7. Notice to Warrant Holders. Whenever the number of shares of
Warrant Stock for which a Warrant is exercisable, or whenever the Exercise
Price, shall be adjusted pursuant to Section 6, the Company shall forthwith
prepare a certificate setting forth, in reasonable detail, the event requiring
the adjustment and the method by which such adjustment was calculated,
specifying the number of shares of Common Stock for which a Warrant is
exercisable and describing the number and kind of any other shares of stock or
Other Property for which a Warrant is exercisable, and any change in the
purchase price or prices thereof, after giving effect to such adjustment or
change. The Company shall promptly cause a signed copy of such certificate to be
delivered to the Warrant Agent and each Holder in accordance with Section 14.2.
The Company shall keep at its office or agency designated by the Company
pursuant to Section 12 copies of all such certificates and cause the same to be
available for inspection at said office during normal business hours by any
Holder or any prospective purchaser of a Warrant designated by a Holder thereof.
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8. No Impairment. The Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant Agreement or any
Warrant. Without limiting the generality of the foregoing, the Company will (i)
not increase the par value of any shares of Common Stock receivable upon the
exercise of a Warrant above the amount payable therefor upon such exercise
immediately prior to such increase in par value and (ii) take all such action as
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock upon the
exercise of any Warrant.
9. Reservation and Authorization of Common Stock. From and after
the date hereof, the Company shall at all times reserve and keep available for
issue upon the exercise of Warrants such number of its authorized but unissued
shares of Common Stock as will be sufficient to permit the exercise in full of
all outstanding Warrants. All shares of Common Stock which shall be so issuable,
when issued upon exercise of any Warrant and payment therefor in accordance with
the terms of this Warrant Agreement and such Warrant, shall be duly and validly
issued and fully paid and nonassessable, and not subject to preemptive rights.
10. Stock and Warrant Transfer Books. The Company will not at any
time, except upon dissolution, liquidation or winding up of the Company, close
its stock transfer books or Warrant transfer books so as to result in preventing
or delaying the exercise or transfer of any Warrant.
11. Loss or Mutilation. Upon receipt by the Company and the
Warrant Agent from any Holder of evidence reasonably satisfactory to them of the
ownership of and the loss, theft, destruction or mutilation of such Holder's
Warrant and indemnity reasonably satisfactory to them, and in case of mutilation
upon surrender and cancellation thereof, the Company will execute and the
Warrant Agent will countersign and deliver in lieu hereof a new Warrant of like
tenor and representing an equal number of Warrants to such Holder; provided, in
the case of mutilation, no indemnity shall be required if such Warrant in
identifiable form is surrendered to the Company or the Warrant Agent for
cancellation.
12. Office of Company. As long as any of the Warrants remain
outstanding, the Company shall maintain an office or agency (which may be the
principal executive offices of the Company) where the Warrants may be presented
for exercise, registration of transfer, division or combination as provided in
this Warrant Agreement. The Company shall initially maintain such an agency at
the Warrant Agent's Principal Offices.
13. Warrant Agent.
13.1 Merger or Consolidation or Change of Name of Warrant
Agent. Any Person into which the Warrant Agent may be merged or with which it
may be consolidated, or any Person resulting from any merger or consolidation to
which the Warrant Agent shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the Warrant Agent, shall be
the successor to the Warrant Agent hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto. If at the
time such
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successor by merger or consolidation to the Warrant Agent shall succeed to the
agency created by this Warrant Agreement any of the Warrants shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the predecessor Warrant Agent and deliver such
Warrants so countersigned; and if at that time any of the Warrants shall not
have been countersigned, any successor to the Warrant Agent may countersign such
Warrants either in the name of the predecessor Warrant Agent or in the name of
the successor Warrant Agent; and in all such cases Warrants shall have the full
force provided in the Warrants and in this Warrant Agreement. If at any time the
name of the Warrant Agent shall be changed and at such time any of the Warrants
shall have been countersigned but not delivered, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrants so
countersigned; and if at that time any of the Warrants shall not have been
countersigned as provided in Section 3.3, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Warrant Agreement.
13.2 Certain Terms and Conditions Concerning the Warrant
Agent. The Warrant Agent undertakes the duties and obligations imposed by this
Warrant Agreement upon the following terms and conditions, by all of which the
Company and the Holders, by their acceptance of Warrants, shall be bound:
(a) Correctness of Statements. The statements
contained herein and in the Warrants shall be taken as statements of the Company
and the Warrant Agent assumes no responsibility for the correctness of any of
the same. The Warrant Agent assumes no responsibility with respect to the
distribution of the Warrants except as herein expressly provided.
(b) Breach of Covenants. The Warrant Agent shall
not be responsible for any failure of the Company to comply with any of the
covenants contained in this Warrant Agreement or in the Warrants to be complied
with specifically by the Company.
(c) Performance of Duties. The Warrant Agent may
execute and exercise any of the rights or powers hereby vested in it or perform
any duty hereunder either itself or by or through its attorneys or agents (which
shall not include its employees) and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) Reliance on Counsel. The Warrant Agent may
consult at any time with legal counsel satisfactory to it and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Holder in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel provided that
such counsel shall have been selected with due care.
(e) Proof of Actions Taken. Whenever in the
performance of its duties under this Warrant Agreement the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed conclusively to be proved and established by a
certificate signed by the President, a Vice President, the Secretary or an
Assistant Secretary of the Company and
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delivered to the Warrant Agent; and such certificate shall be full authorization
to the Warrant Agent for any action taken or suffered in good faith by it under
the provisions of this Warrant Agreement in reliance upon such certificate.
(f) Legal Proceedings. The Warrant Agent shall
be under no obligation to institute any action, suit or legal proceeding or to
take any other action likely to involve expense unless the Company or one or
more Holders shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses that may be incurred, but this provision
shall not affect the power of the Warrant Agent to take such action as the
Warrant Agent may consider proper, whether with or without any such security or
indemnity. All rights of action under this Warrant Agreement or under any of the
Warrants may be enforced by the Warrant Agent without the possession of any of
the Warrants or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the Holders, as their respective rights or
interests may appear.
(g) Other Transactions in Securities of the
Company. The Warrant Agent and any stockholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Warrant Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal entity.
(h) Liability of Warrant Agent. The Warrant
Agent shall act hereunder solely as agent, and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not be liable for
anything that it may do or refrain from doing in connection with this Warrant
Agreement except for its own gross negligence or bad faith.
(i) Reliance on Documents. The Warrant Agent
will not incur any liability or responsibility to the Company or to any Holder
for any action taken in reliance on any notice, resolution, waiver, consent,
order, certificate, or other paper, document or instrument reasonably believed
by it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(j) Validity of Agreements. The Warrant Agent
shall not be under any responsibility in respect of the validity of this Warrant
Agreement or the execution and delivery hereof (except the due execution and
delivery hereof by the Warrant Agent) or in respect of the validity or execution
of any Warrant (except its countersignature and delivery thereof); nor shall the
Warrant Agent by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Warrant Stock (or other
stock or other property) to be issued pursuant to this Warrant Agreement or any
Warrant, or as to whether any Warrant Stock (or other stock or other property)
will, when issued, be validly issued, fully paid and nonassessable, or as to the
Warrant Price or the number or amount of Warrant Stock or other securities or
other property issued upon exercise of any Warrant.
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(k) Instructions from Company. The Warrant Agent
is hereby authorized and directed to accept instructions with respect to the
performance of its duties hereunder from the President, a Vice President, the
Secretary or any Assistant Secretary of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and shall not
be liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer or officers.
13.3 Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties under this Warrant Agreement by giving to the
Company 30 days' advance notice in writing. The Warrant Agent may be removed by
like notice to the Warrant Agent from the Company. If the Warrant Agent shall
resign or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Warrant Agent. If the Company shall fail to
make such appointment within a period of 30 days after such removal or after it
has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Warrant Agent, then any Holder may apply to a court of
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Pending the appointment of the successor warrant agent, the Company shall
perform the duties of the Warrant Agent. After appointment, the successor
warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; provided, however, the former Warrant Agent shall be
required to deliver and transfer to the successor warrant agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to file any notice
provided for in this Section 13.3, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor warrant agent, as the case may be. In
the event of such resignation or removal, the successor warrant agent shall
mail, first class, to each Holder, written notice of such removal or resignation
and the name and address of such successor warrant agent.
13.4 Disposition of Proceeds on Exercise of Warrants,
Inspection of Warrant Agreement. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
in immediately available funds all amounts received by the Warrant Agent for the
purchase of the Warrant Stock through the exercise of such Warrants. The Warrant
Agent shall, upon request of the Company from time to time, deliver to the
Company such complete reports of registered ownership of the Warrants and such
complete records of transactions with respect to the Warrants as the Company may
request. The Warrant Agent shall also make available to the Company for
inspection by the Company's agents or employees, from time to time as the
Company may request, such original books of accounts and records maintained by
the Warrant Agent in connection with the issuance and exercise of Warrants
hereunder, such inspections to occur at the Warrant Agent's Principal Office.
The Warrant Agent shall keep copies of this Warrant Agreement and any notices
given or received hereunder available for inspection by the Company or the
Holders at the Warrant Agent's Principal Office. The Company shall supply the
Warrant Agent from time to time with such numbers of copies of this Warrant
Agreement as the Warrant Agent may request.
13.5 Cancellation. The Warrant Agent shall cancel all
Warrant certificates properly surrendered for exercise, exchange, substitution,
or transfer. The Warrant Agent shall destroy all cancelled Warrant certificates
and, if requested, deliver a certificate of such destruction to the Company.
11
13.6 Survival. This Section 13 shall survive the
resignation or removal of the Warrant Agent and the termination of this Warrant
Agreement.
14. Miscellaneous.
14.1 Listing of Common Stock. The Company shall use
reasonable commercial efforts to cause the shares of Common Stock to be listed
on a national securities exchange or the NASDAQ National Market. The Company
shall voluntarily maintain the registration of the Common Stock under Section
12(g) of the Securities Exchange Act of 1934, as amended.
14.2 Rights of Holders. Holders of unexercised Warrants
are not entitled to (i) receive dividends or other distributions, (ii) receive
notice of or vote at any meeting of the stockholders, (iii) consent to any
action of the stockholders, (iv) exercise any preemptive right, or (v) exercise
any other right whatsoever granted to stockholders of the Company.
14.3 Notice Generally. Any notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder to be
made pursuant to the provisions of this Warrant Agreement shall be sufficiently
given or made if in writing and either delivered in person with receipt
acknowledged or sent by registered or certified mail, return receipt requested,
postage prepaid or by facsimile, addressed as follows:
If to any Holder or holder of Warrant Stock, at its
last known address appearing on the warrant register of the Company maintained
for such purpose.
If to Company at:
Thermadyne Holdings Corporation
00000 Xxxxxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Thermadyne Holdings Corporation
00000 Xxxxxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Ms. Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12
If to Warrant Agent at:
EquiServe Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, the first Business Day after delivery by facsimile, receipt
acknowledged, or the third Business Day after deposit in the United States mail,
whichever is earlier.
14.4 Successors and Assigns. All covenants and provisions
of this Warrant Agreement by or for the benefit of the Company or the Warrant
Agent shall bind and inure to the benefit of their respective successors and
assigns hereunder.
14.5 Amendment. This Warrant Agreement and the Warrants
may only be modified or amended or the provisions hereof and thereof waived with
the written consent of the Company, the Warrant Agent and the Majority Holders,
provided that no Warrant may be modified or amended to reduce the number of
shares of Common Stock for which such Warrant is exercisable or to increase the
price at which such shares may be purchased upon exercise of such Warrant
(before giving effect to any adjustment as provided herein and therein) without
the prior written consent of the Holder thereof.
14.6 Third-Party Beneficiaries. All covenants and
provisions of this Warrant Agreement shall inure to the benefit of each Holder
from time to time of Warrants.
14.7 Severability. Wherever possible, each provision of
this Warrant Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Warrant Agreement.
14.8 Headings. The headings used in this Warrant Agreement
are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant Agreement.
14.9 Governing Law. This Warrant Agreement and the
Warrants shall be governed by the laws of the State of Delaware, without regard
to the provisions thereof relating to conflict of laws.
13
14.10 Counterparts. This Warrant Agreement 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.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
14
In witness whereof, each of the Company and the Warrant Agent has
caused this Warrant Agreement to be executed by its duly authorized officers as
of the date first above written.
THERMADYNE HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President, Chief
Financial Officer and Office of the
Chairman
EQUISERVE TRUST COMPANY, N.A.
By: ______________________________________
Name: ____________________________________
Title: Managing Director
Schedule A
Holder Aggregate Number of Warrants
Cede & Co. (on behalf of US Bank 700,000
as Trustee for the 9 7/8% Senior
Subordinated Note Holders)
EXHIBIT A
[Form of Face of Warrant Certificate]
CLASS B WARRANT
TO PURCHASE COMMON STOCK, PAR VALUE $0.01 PER SHARE,
OF
THERMADYNE HOLDINGS CORPORATION
CERTIFICATE NO.: ___________ NUMBER OF WARRANTS:_____________
Exercisable from and after the date hereof until 5:00 p.m., New York
City time on May __, 2006 (the "Expiration Date").
This Warrant Certificate certifies that ____________________, or its
registered assigns, is the registered holder ("Holder") of the number of Class B
Warrants set forth above expiring at 5:00 p.m., New York City time, on the
Expiration Date (the "Warrants") to purchase common stock, par value $0.01 per
share (the "Common Stock"), of Thermadyne Holdings Corporation, a Delaware
corporation (the "Company"). The Common Stock issuable upon exercise of the
Warrants is hereinafter referred to as the "Warrant Stock." Each Warrant
entitles the Holder, upon exercise thereof, to purchase from the Company at any
time from and after the date hereof until 5:00 p.m., New York City time, on the
Expiration Date, one (1) share of Common Stock at the initial purchase price of
$20.78 per share subject to adjustment and the other terms and conditions set
forth herein and in the Warrant Agreement dated as of May ___, 2003 (the
"Warrant Agreement") by and between the Company and EquiServe Trust Company,
N.A., as warrant agent (the "Warrant Agent"). Such purchase shall be payable in
lawful money of the United States of America by certified or official bank check
or any combination thereof to the order of the Warrant Agent for the account of
the Company at the principal office of the Warrant Agent, subject to the
conditions set forth herein and in the Warrant Agreement. The number of shares
of Common Stock for which each Warrant is exercisable, and the price at which
such shares may be purchased upon exercise of each Warrant, are subject to
adjustment upon the occurrence of certain events as set forth in the Warrant
Agreement. Whenever the number of shares of Common Stock for which a Warrant is
exercisable, or the price at which a share of such Common Stock may be purchased
upon exercise of the Warrants, is adjusted pursuant to the Warrant Agreement,
the Company shall cause written notice of such adjustment to be given to each
Holder at such Holders address appearing on the Warrant register by first class
mail postage pre-paid.
No Warrant may be exercised after 5:00 p.m., New York City time, on the
Expiration Date, and to the extent not exercised by such time such Warrants
shall be void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse side hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO THE PROVISIONS THEREOF RELATING TO CONFLICT OF LAWS.
In witness whereof, the undersigned, duly authorized officer of the
Company has caused this Warrant Certificate to be signed as of this __ day of
May, 2003.
THERMADYNE HOLDINGS CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
COUNTERSIGNED:
EQUISERVE TRUST COMPANY, N.A.
as Warrant Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
[Form of Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of up to 700,000 Warrants expiring at 5:00 p.m., New York City
time, on the Expiration Date, entitling the Holder, on exercise, to purchase
shares of Common Stock, par value $0.01 per share, of the Company, and are
issued or to be issued pursuant to the Warrant Agreement, which Warrant
Agreement is hereby incorporated by reference and made a part of this instrument
and is hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the Company
and the Holders. A copy of the Warrant Agreement may be obtained by the Holder
hereof upon written request to the Company or the Warrant Agent at the addresses
set forth below.
Warrants may be exercised by surrendering this Warrant Certificate,
with the Election to Purchase set forth hereon properly completed and executed,
together with payment of the purchase price by certified or official bank check
payable to the order of the Warrant Agent for the account of the Company. In the
event that the number of Warrants exercised shall be less than the total number
of Warrants evidenced hereby, there shall be issued to the Holder hereof or the
Holder's assignee a new Warrant Certificate evidencing the number of Warrants
not exercised.
The Warrant Agreement provides that the number of shares of Common
Stock for which each Warrant is exercisable, and the price at which such shares
may be purchased upon exercise of each Warrant, are subject to adjustment upon
the occurrence of certain events as set forth in the Warrant Agreement. The
Company shall not issue fractional shares of Common Stock upon the exercise of
any Warrant, and the Company shall round down to the nearest share of Common
Stock as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant
Agent by the registered Holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement for another Warrant
Certificate or Warrant Certificates of like tenor evidencing in the aggregate a
like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement.
* * * * *
COMPANY: WARRANT AGENT:
Thermadyne Holdings Corporation EquiServe Trust Company, N.A.
00000 Xxxxxxxx Xxxxx Xx., Xxxxx 000 000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000 (000) 000-0000
* * * * *
ELECTION TO PURCHASE
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant for the purchase of ______ shares of Common Stock of Thermadyne
Holdings Corporation and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this Warrant and the Warrant Agreement
and requests that certificates for the shares of Common Stock hereby purchased
(and any securities or other property issuable upon such exercise) be issued in
and delivered to the name and address specified below and, if such shares of
Common Stock shall not include all of the shares of Common Stock issuable as
provided in this Warrant, that a new Warrant of like tenor and date for the
balance of the shares of Common Stock issuable hereunder be delivered to the
undersigned.
Date: ____________ ___________________________________________
Signature of Registered Owner*
___________________________________________
Name Common Stock to be Registered Under
___________________________________________
Address Common Stock to be Registered Under
* * * * *
ASSIGNMENT
For value received the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to _____________
shares of Common Stock and does hereby irrevocably constitute and appoint
_______________________ attorney-in-fact to register such transfer on the books
of Thermadyne Holdings Corporation, with full power of substitution in the
premises.
Date: ____________ ___________________________________________
Signature of Registered Owner*
___________________________________________
Name of Assignee
___________________________________________
Address of Assignee
* THE SIGNATURE ON THE ELECTION TO PURCHASE OR ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE WARRANT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
