EXHIBIT 4
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, the undersigned holder (the "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, 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, the 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.
3. From the date hereof until the termination hereof, the 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. The
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. The 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. The Stockholder hereby represents and warrants to MergerSub that
as of the date hereof:
(a) the 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 the
Stockholder.
(c) No investment banker, broker or finder is entitled to a commission
or fee from the 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.
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.
11. This Agreement shall terminate upon the termination of the
Agreement Period.
12. The 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 the Stockholder prior to or concurrent with the consummation of such
Transfer. MergerSub and the Company understand and acknowledge that, subject to
the preceding sentence, the 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 the 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 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 Stockholder) of
Stockholder incurred in connection with the Voting Agreement or the Merger in an
amount not to exceed $5,000, or in the event the Stockholder becomes 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
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
THERMADYNE HOLDINGS
CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
FIDELITY CAPITAL & INCOME
FUND
By /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
Fidelity Capital & Income Fund ("Stockholder") is a portfolio of a
Massachusetts business trust. A copy of the Stockholder's Declaration of Trust
(under the name Fidelity Summer Street Trust) is on file with the Secretary of
State of the Commonwealth of Massachusetts. Each of the parties hereto
acknowledges and agrees that this Agreement is not executed on behalf of the
trustees of the Stockholder as individuals, and the obligations of this
Agreement are not binding upon any of the trustees, officers or shareholders of
the Stockholder individually, but are binding only upon the assets and property
of the Stockholder. MergerSub agrees that no shareholder, trustee or officer of
the Stockholder may be held personally liable or responsible for any obligations
of the Stockholder arising out of this Agreement. With respect to obligations of
the Stockholder arising out of this Agreement, MergerSub shall look for payment
or satisfaction of any claim solely to the assets and property of the
Stockholder. MergerSub is expressly put on notice that the rights and
obligations of each series of shares of the Stockholder under its Declaration of
Trust are separate and distinct from those of any and all other series.
SCHEDULE A
Shares of Company
Stockholder Common Stock
----------- ------------
Fidelity Capital & Income Fund 2,424,935
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.
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.
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,
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.
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: Xxxxx X. Xxxxxx
Title: President
THERMADYNE HOLDINGS
CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
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: Managing Director
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: Xxxxxx X. Xxxxx
Title:
SCHEDULE A
Shares of Company
Stockholder Common Stock
------------- -----------------
Magten Asset Management Corp. 1,222,448
General Motors Employees 1,701,125
Domestic Group 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
-------
3,563,573
AMENDMENT NO. 1 TO VOTING AGREEMENT
AMENDMENT NO. 1 TO VOTING AGREEMENT (this "Amendment"), dated February
19, 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
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 519,000
Police Pension Systems
Xxxxxx Retirement Plans Trust 640,000
Navy Exchange Service Command 300,000
Retirement Trust
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 19th day of February, 1998.
MERCURY ACQUISITION
CORPORATION
By /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title:
THERMADYNE HOLDINGS
CORPORATION
By /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title:
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
-------------------------------
Name:
Title:
MAGTEN ASSET MANAGEMENT
CORP.
By /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
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: Xxxxxx X. Xxxxx
Title: Chairman
