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Exhibit 2
VOTING AGREEMENT
In consideration of Mercury Acquisition Corporation, a Delaware corporation
("MergerSub") and Thermadyne Holdings Corporation, a Delaware corporation (the
"Company"), entering into on the date hereof an Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement") which provides, among other
things, that MergerSub, upon the terms and subject to the conditions thereof,
will be merged with and into the Company (the "Merger") and each outstanding
share of common stock, $0.01 par value, of the Company (the "Company Common
Stock") will be converted into the right to receive the Merger Consideration (as
defined in the Merger Agreement) in accordance with the terms of such Agreement,
each of the undersigned holders (each a "Stockholder") of shares of Company
Common Stock agrees with MergerSub as follows:
1. During the period (the "Agreement Period") beginning on the date
hereof and ending on the earlier of
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(i) the Effective Time (as defined in the Merger Agreement), (ii) the date that
is 90 days after the termination of the Merger Agreement in accordance with
Section 9.01(c) (in the case of a termination by MergerSub), (e), (f) or (g)
thereof and payment in full of all amounts (if any) payable to MergerSub
pursuant to Section 5.04 of the Merger Agreement, (iii) the date of termination
of the Merger Agreement for any other reason and (iv) June 30, 1998, the
Stockholder hereby agrees to vote the shares of Company Common Stock set forth
opposite its name in Schedule A hereto (the "Schedule A Securities") to approve
and adopt the Merger Agreement and the Merger (provided that the Stockholder
shall not be required to vote in favor of the Merger Agreement or the Merger if
the Merger Agreement has, without the consent of the Stockholder, been amended
in any manner that is material and adverse to such Stockholder) and any actions
directly and reasonably related thereto at any meeting or meetings of the
stockholders of the Company, and at any adjournment thereof or pursuant to
action by written consent, at or by which such Merger Agreement, or such other
actions, are submitted for the consideration and vote of the stockholders of the
Company so long as such meeting is held (including any adjournment thereof) or
written consent adopted prior to the termination of the Agreement Period.
2. During the Agreement Period, each Stockholder hereby agrees that it will
not vote any of the Stockholder's Schedule A Securities in favor of the
approval of any other merger, consideration, sale of assets, reorganization,
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recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company or any matters related to or in
connection therewith, or any corporate action relating to or the consummation of
which would either frustrate the purposes of, or prevent or delay the
consummation of, the transactions contemplated by the Merger Agreement.
3. From the date hereof until the termination hereof, each Stockholder will
not, directly or indirectly, (i) take any action to solicit, initiate or
encourage any Acquisition Proposal or (ii) engage in negotiations or discussions
with, or disclose any nonpublic information relating to the Company or any
Subsidiary or afford access to the properties, books or records of the Company
or any Subsidiary to, or otherwise assist, facilitate or encourage, any Third
Party that may be considering making, or has made, an Acquisition Proposal. Each
Stockholder will promptly notify MergerSub after receipt of any Acquisition
Proposal or any indication from any Third Party that it is considering making an
Acquisition Proposal or any request for nonpublic information relating to the
Company or any Subsidiary or for access to the properties, books or records of
the Company or any Subsidiary by any Third Party that may be considering making,
or has made, an Acquisition Proposal and will keep MergerSub fully informed of
the status and details of any such Acquisition Proposal, indication or request.
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4. Each Stockholder agrees not to exercise any rights (including, without
limitation, under Section 262 of the Delaware Law) to demand appraisal of any
shares of Company Common Stock owned by the Stockholder.
5. Each Stockholder hereby represents and warrants to MergerSub that as of
the date hereof:
(a) such Stockholder (i) owns beneficially all of the shares of
Company Common Stock set forth opposite the Stockholder's name in Schedule A
hereto, (ii) has the full and unrestricted legal power, authority and right to
enter into, execute and deliver this Voting Agreement without the consent or
approval of any other person and (iii) has not entered into any voting agreement
with or granted any person any proxy (revocable or irrevocable) with respect to
such shares (other than this Voting Agreement).
(b) This Voting Agreement is the valid and binding agreement of such
Stockholder.
(c) No investment banker, broker or finder is entitled to a commission
or fee from such Stockholder or the Company in respect of this Agreement based
upon any arrangement or agreement made by or on behalf of the Stockholder.
6. If any provision of this Voting Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the
extent of such
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invalidity or unenforceability only, without in any way affecting the remaining
provisions of this Voting Agreement.
7. This Voting Agreement may be executed in two or more counterparts each
of which shall be an original with the same effect as if the signatures hereto
and thereto were upon the same instrument.
8. The parties hereto agree that if for any reason any party hereto shall
have failed to perform its obligations under this Voting Agreement, then the
party seeking to enforce this Agreement against such non-performing party shall
be entitled to specific performance and injunctive and other equitable relief,
and the parties hereto further agree to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such injunctive
or other equitable relief. This provision is without prejudice to any other
rights or remedies, whether at law or in equity, that any party hereto may have
against any other party hereto for any failure to perform its obligations under
this Voting Agreement.
9. This Voting Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
10. The Stockholder will, upon request, execute and deliver any additional
documents deemed by MergerSub to be necessary or desirable to complete and
effectuate the covenants contained herein.
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11. This Agreement shall terminate upon the termination of the Agreement
Period.
12. Each Stockholder agrees that if it sells, transfers, assigns, encumbers
or otherwise disposes (each a "Transfer") of any Schedule A Securities (whether
to an affiliate or otherwise), it shall require the transferee of such Schedule
A Securities to execute and deliver to MergerSub and the Company a voting
agreement identical in form to this Voting Agreement except for the identity of
such Stockholder prior to or concurrent with the consummation of such Transfer.
MergerSub and the Company understand and acknowledge that, subject to the
preceding sentence, such Stockholder is free to Transfer any Schedule A
Securities at such times and in such manner as it deems appropriate.
13. MergerSub and the Company understand and agree that this Agreement
pertains only to Stockholder and not to any of its affiliates, if any, or
adviser.
14. MergerSub and the Company severally and not jointly represent and
warrant to each Stockholder that there is no agreement, understanding or
commitment, written or oral, to pay any consideration directly or indirectly in
connection with the Merger or otherwise to or for the benefit of any holder of
Company Common Stock or options thereon other than as set forth in the Merger
Agreement (except, in the case of directors, employees, agents, customers,
suppliers or contractors of the Company who are
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also holders, such consideration as is payable by the Company in the ordinary
course of business and except for amounts payable to officers, directors or
employees in connection with or pursuant to any options, or option, stock
purchase, stock ownership or other employee benefit plans). All other voting
agreements signed with existing shareholders prior to or concurrently herewith
are substantially identical to this Agreement.
Neither MergerSub nor the Company will enter into any agreement with any
other stockholder having a purpose or effect substantially similar to that of
this Agreement on financial terms (with respect to such other stockholder) more
favorable than the terms of this Agreement.
15. MergerSub agrees that it will pay upon request the reasonable fees and
expenses (including fees and expenses of counsel for the Stockholders) of all
Stockholders incurred in connection with the Voting Agreement or the Merger in
an amount not to exceed $5,000, or in the event the Stockholders become involved
in litigation, $15,000 in the aggregate.
IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
as of this 20th day of January, 1998.
MERCURY ACQUISITION CORPORATION
By /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
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President
THERMADYNE HOLDINGS CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman of the Board
GENERAL MOTORS EMPLOYEES DOMESTIC
GROUP PENSION TRUST
By: Mellon Bank, N.A., solely in
its capacity as Trustee for General
Motors Employees Domestic Group
Pension Trust as directed by Magten
Asset Management Corp., and not in
its individual capacity.
By /s/ Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx
Authorized Signatory
MAGTEN ASSET MANAGEMENT CORP.
By /s/ Xxxxxx X. Xxxxx
Name:
Title:
CITY OF LOS ANGELES FIRE AND POLICE
PENSION SYSTEMS
XXXXXX RETIREMENT PLANS TRUST
NAVY EXCHANGE SERVICE COMMAND
RETIREMENT TRUST
WESTERN UNION TELEGRAPH COMPANY
PENSION PLAN
By: Magten Asset Management Corp.,
as Attorney-in-Fact
By /s/ Xxxxxx X. Xxxxx
Name:
Title:
SCHEDULE A
Shares of Company
Common Stock
Stockholder
Magten Asset Management Corp. 152,847
General Motors Employees 1,701,125
Domestic Group Pension Trust
City of Los Angeles Fire and
Police Pension Systems 519,000
Xxxxxx Retirement Plans Trust 640,000
Navy Exchange Service Command
Retirement Trust 300,000
Western Union Telegraph
Company Pension Plan 250,601
3,563,573
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EXHIBIT 2
AMENDMENT NO. 1 TO VOTING AGREEMENT
AMENDMENT NO. 1 TO VOTING AGREEMENT (this "Amendment"), dated February 20,
1998, by and between Mercury Acquisition Corporation, a Delaware corporation
("MergerSub"), Thermadyne Holdings Corporation, a Delaware corporation (the
"Company"), and the undersigned holders (each, a "Stockholder") of shares of
Company Common Stock.
WHEREAS, MergerSub, the Company and the Stockholders are parties to a
Voting Agreement dated as of January 20, 1998 (the "Voting Agreement"); and
WHEREAS, the parties desire to amend a certain schedule of the Voting
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein and in the Voting Agreement, the parties hereto agree as
follows:
1. Schedule A of the Voting Agreement is hereby amended to read in its
entirety as follows:
SCHEDULE A
SHARES OF COMPANY
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STOCKHOLDER COMMON STOCK
----------- ------------
Magten Asset Management Corp. 107,047
General Motors Employees 1,701,125
Domestic Group Pension Trust
City of Los Angeles Fire and
Police Pension Systems 519,000
Xxxxxx Retirement Plans Trust 640,000
Navy Exchange Service Command
Retirement Trust 300,000
Western Union Telegraph
Company Pension Plan 250,601
----------
3,517,773
2. Except as specifically amended by this Amendment, the Voting Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Voting agreement as of this 20th day of February, 1998.
MERCURY ACQUISITION CORPORATION
By /s/ XXXXXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President and
Secretary
THERMADYNE HOLDINGS CORPORATION
By /s/ XXXXX X. XXXX
-------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
GENERAL MOTORS EMPLOYEES DOMESTIC
GROUP PENSION TRUST
By: Mellon Bank, N.A., solely in
its capacity as Trustee for General
Motors Employees Domestic Group
Pension Trust as directed by
Magten Asset Management Corp.,
and not in its individual capacity
By /s/ XXXXXXXXXX XXXX
-------------------------------
Name: Xxxxxxxxxx Xxxx
Title: Authorized Signatory
MAGTEN ASSET MANAGEMENT CORP.
By /s/ XXXXXX X. XXXXX
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
CITY OF LOS ANGELES FIRE AND
POLICE PENSION SYSTEMS
XXXXXX RETIREMENT PLANS TRUST
NAVY EXCHANGE SERVICE COMMAND
RETIREMENT TRUST
WESTERN UNION TELEGRAPH
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COMPANY PENSION PLAN
By Magten Asset Management Corp., as
Attorney-in-Fact
By /s/ XXXXXX X. XXXXX
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
