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EXHIBIT 2.2
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 (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, each 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, consolidation, sale of assets, reorganization,
recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company or any matters related to or in
connection therewith, or any corporate action relating to or the consummation
of which would either frustrate the purposes of, or prevent or delay the
consummation of, the transactions contemplated by the Merger Agreement.
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3. From the date hereof until the termination hereof, 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.
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 invalidity or unenforceability only, without in any way
affecting the remaining provisions of this Voting Agreement.
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7. This Voting Agreement may be executed in two or more
counterparts each of which shall be an original with the same effect as if the
signatures hereto and thereto were upon the same instrument.
8. The parties hereto agree that if for any reason any party
hereto shall have failed to perform its obligations under this Voting
Agreement, then the party seeking to enforce this Agreement against such
non-performing party shall be entitled to specific performance and injunctive
and other equitable relief, and the parties hereto further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such-injunctive or other equitable relief. This provision is
without prejudice to any other rights or remedies, whether at law or in equity,
that any party hereto may have against any other party hereto for any failure
to perform its obligations under this Voting Agreement.
9. This Voting Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10. Each Stockholder will, upon request, execute and deliver any
additional documents deemed by MergerSub to be necessary or desirable to
complete and effectuate the covenants contained herein.
11. This Agreement shall terminate upon the termination of the
Agreement Period.
12. 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 each 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,
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suppliers or contractors of the Company who are also holders, such
consideration as is payable by the Company in the ordinary course of business
and except for amounts payable to officers, directors or employees in
connection with or pursuant to any options, or option, stock purchase, stock
ownership or other employee benefit plans). All other voting agreements signed
with existing shareholders prior to or concurrently herewith are substantially
identical to this Agreement.
Neither MergerSub nor the Company will enter into any agreement with
any other stockholder having a purpose or effect substantially similar to that
of this Agreement on financial terms (with respect to such other stockholder)
more favorable than the terms of this Agreement.
15. MergerSub agrees that it will pay upon request the reasonable
fees and expenses (including fees and expenses of counsel for the 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of this 20th day of January, 1998.
MERCURY ACQUISITION
CORPORATION
By /s/ XXXXX X. XXXXXX
-------------------------
Name:
Title:
THERMADYNE HOLDINGS
CORPORATION
By /s/ XXXXXXX X. CURRAW
-------------------------
Name:
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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:
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:
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SCHEDULE A
Shares of Company
Stockholder Common Stock
----------------------------------------- -----------------
Magten Asset Management Corp. 1,222,448
General Motors Employees Domestic Group 1,701,125
Pension Trust
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 640,000
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3,563,573
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