EXCHANGE AGENT AGREEMENT
Date: April , 1998
BankBoston, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Agency and Reorganization Department
Gentlemen:
Thermadyne Holdings Corporation, a Delaware corporation (the
"Company"), hereby requests that you act as Exchange Agent with respect to the
surrender of certificates for shares of Common Stock, $0.01 par value per share
(the "Shares"), of the Company pursuant to Section 1.02 of the Agreement and
Plan of Merger dated as of January 20, 1998 (the "Merger Agreement"), between
the Company and Mercury Acquisition Corporation, a Delaware corporation
("Mercury"). At the Effective Time, as such term is defined in the Merger
Agreement: (a) each share of common stock, par value $0.01 per share, of
Mercury outstanding immediately prior to the Effective Time shall be converted
into and become one share of common stock of the surviving corporation; (b)
each share of preferred stock, par value $0.01 per share, of Mercury, if any,
outstanding immediately prior to the Effective Time shall be converted into and
become one share of preferred stock of the surviving corporation; (c) each
Share outstanding immediately prior to the Effective Time shall, except as
otherwise provided in Section 1.02(a) of the Merger Agreement or as provided in
Section 1.06 of the Merger Agreement with respect to Shares as to which
appraisal rights have been exercised, be converted into the following (the
"Merger Consideration"): (i) for each such Share with respect to which an
election to retain common stock of the Company has been effectively made and
not revoked or lost pursuant to Sections 1.03(c), (d) and (e) of the Merger
Agreement ("Stock Electing Shares"), or is deemed made pursuant to Section
1.04(d)(ii) of the Merger Agreement, as the case may be, the right to retain
one share of common stock, par value $0.01 per share (the "New Shares"); and
(ii) for each such Share (other than Stock Electing Shares and Shares as to
which an election to retain New Shares is deemed made pursuant to Section
1.04(d)(ii)), the right to receive in cash an amount equal to $34.50. The
Merger is currently expected to become effective on or shortly after the
Special
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Meeting of Stockholders of the Company to be held on May , 1998 for the purpose
of approving the Merger.
The time at which the Merger becomes effective is referred to in the
Merger Agreement and in this letter as the "Effective Time." You will be
informed by us of the Effective Time at least five business days prior thereto.
In this regard, the Company has furnished (or will furnish prior to
the distribution of proxy material relating to the Special Meeting of
Stockholders of the Company referred to above) you with copies of the following
documents:
(a) a letter of Xxxxxxx X. Xxxxxx, President and Chief Executive
Officer of the Company, to holders of the Shares, announcing
the effectiveness of the Merger.
(b) The Stock Election Form and the Letter of Transmittal (the
"Letter of Transmittal") to accompany certificates for Shares
when surrendered for the Merger Consideration and the related
Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(c) The Company's Proxy Statement dated April , 1998 relating to
the Merger and (as an Exhibit thereto) the Merger Agreement.
The Company will mail or cause to be mailed each of the documents
described in clauses (a) and (b) above, together with a return envelope, to
holders of Shares of record at the Effective Time, in accordance with Section
1.05 of the Merger Agreement.
In your capacity as Exchange Agent you will receive certificates
representing Shares surrendered for payment of the Merger Consideration.
Subject to the terms and conditions of this Agreement you are authorized to
accept such certificates and to pay the Merger Consideration to the Company's
stockholders, in accordance with the provisions of Sections 1.04 and 1.05 of
the Merger Agreement and the Letter of Transmittal, and to act in accordance
with the following instructions:
1. You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of Shares that any Letter of Transmittal may
indicate are owned by a holder of Shares and the number that the Record
Stockholders List indicates such stockholder owned of record as of the
Effective Time. In any instance where you cannot reconcile such discrepancies
by following such procedures, you will consult with the
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Company for instructions as to the number of Shares, if any, you are authorized
to accept for payment In the absence of such instructions, you are authorized
not to make any payment.
2. You will examine the Letter of Transmittal and certificates for the
Shares received by you as Exchange Agent to ascertain whether they appear to
you to have been completed and executed in accordance with the instructions set
forth in the Letter of Transmittal. In the event you determine that any Letter
of Transmittal does not appear to you to have been properly completed or
executed, or where the certificates representing Shares do not appear to you to
be in proper form for surrender, or any other irregularity in connection with
the surrender appears to you to exist, you will follow, where possible, your
regular procedures to attempt to cause any such irregularity to be corrected.
You are not authorized to waive any irregularity in connection with the
surrender, unless you shall have received from the Company the Letter of
Transmittal which was surrendered, duly dated and signed by an authorized
officer of the Company, indicating that any irregularity in such surrender has
been accepted by the Company. If such irregularity is neither corrected nor
waived you will return to the surrendering stockholder (at your option by
either first class mail under a blanket surety bond or insurance protecting you
and the Company from losses or liabilities arising out of the nonreceipt or
nondelivery of such Shares or by registered mail insured separately for the
value of such Shares) to such stockholder's address set forth in the Letter of
Transmittal, any certificates for Shares surrendered in connection therewith,
the related Letter of Transmittal and any other documents received with such
Shares, and a letter of notice to be furnished by the Company explaining the
reasons for the return of the certificates and other documents.
3. Each document received by you relating to your duties hereunder
shall be dated and time stamped when received.
4. On or before the Effective Time, the Company will deposit, or cause
to be deposited, with you in a special account for the benefit of surrendering
holders of the Shares, immediately available funds in an amount equal to the
product of the number of all Shares outstanding at the Effective Time times the
Merger Consideration per Share. You will draw upon the funds in such account as
required from time to time in order to make payments for Shares and any
applicable tax withholding payments. Upon making payment for Shares, you will
physically cancel the certificates representing such Shares and post them to
the stockholder records of the Company.
5. If payment is to be made by you to a person other than the person
in whose name a surrendered certificate is registered, you will make no payment
until the certificate so surrendered has been properly endorsed (or otherwise
put in proper form for transfer) and
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the person requesting such payment has paid any transfer or other taxes or
governmental charges required by reason of such payment in a name other than
that of the registered holder of the certificate surrendered or has established
to your satisfaction that such tax or charge either has been paid or is not
payable. Any tax information with respect to such payment which you are
required to report pursuant to Section 9 of this Agreement shall list the
registered holder of the certificate as the payee.
6. If any holder of Shares as of the Effective Time reports to you
that his failure to surrender a certificate representing any Shares registered
in his name at the Effective Time according to the Record Stockholders List is
due to the theft, loss or destruction of his certificate, you shall require
such stockholder to furnish an affidavit of such theft, loss or destruction and
a bond of indemnity in form and substance satisfactory to you. Upon receipt of
such affidavit and bond of indemnity and compliance with any other applicable
requirements, you may effect payment to such stockholder as though he had
surrendered his certificate.
7. As of the Effective Time, you will become the sole recordkeeping
agent for the Shares in accordance with your standard practices.
8. You will forward to the Company a daily report of the number of
Shares represented by certificates surrendered on the prior business day and
the aggregate amount of cash paid for such certificates. However, the Company
may instruct you to prepare and forward such reports on a weekly or other less
frequent basis.
9. (a) On or before January 31st of the year following the
year that a stockholder exchanges, you will prepare
and mail to each such stockholder, other than
stockholders who demonstrate their status as
nonresident aliens in accordance with United States
Treasury Regulations ("Foreign Stockholders"), a
Form 1099-B reporting the Merger Consideration as of
the year of payment, in accordance with Treasury
Regulations. You will also prepare and file copies
of such Forms 1099-B by magnetic tape with the
Internal Revenue Service on or before February 28th
of the year following the year of the exchange, in
accordance with Treasury Regulations.
(b) If you have not received notice from the
surrendering stockholder of that stockholder's TIN,
or if such TIN has not been certified as correct and
relates to a post-1983 account, you shall deduct and
withhold 31% backup withholding tax from any payment
made to such stockholder
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(other than a Foreign Stockholder) pursuant to
Internal Revenue Code section 3406.
(c) Should any issue arise regarding federal income tax
reporting or withholding, you will take such action
as the Company instructs you in writing.
10. No later than six months after the Effective Time, the Company
will mail or cause to be mailed a follow-up letter to a stockholders who did
not theretofore surrender their certificates, or supply an affidavit and bond
of indemnity pursuant to Section 6 of this Agreement, for payment of the Merger
Consideration. The follow-up letter will be mailed with a Letter of
Transmittal, return envelope, and W-9 Guidelines.
11. The Company may terminate this Agreement at any time by so
notifying you in writing. You may terminate this Agreement upon 30 days' prior
notice to the Company. Unless so terminated, this Agreement shall continue in
effect until all Shares have been received and paid for. In the event of such
termination, the Company will appoint a successor Exchange Agent and inform you
of the name and address of any successor Exchange Agent, provided that no
failure by the Company to appoint such a successor Exchange Agent shaft affect
the termination of this Agreement or the discharge of you as Exchange Agent
hereunder. Upon any such termination, you shall be relieved and discharged of
any further responsibilities with respect to your duties hereunder. Upon
payment of all your outstanding fees and expenses you will forward to the
successor Exchange Agent promptly any certificate for Shares, Letter of
Transmittal, or other document relating to your previous duties hereunder that
you may receive after your appointment has so terminated. Sections 12, 15 and
16 of this Agreement shall survive any termination of this Agreement.
12. As agent for the Company hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently
be agreed to in writing by you and the Company;
(b) shall have no obligation to make payment for any
surrendered Shares unless the Company shall have
provided the necessary federal or other immediately
available funds to pay in full amounts due and
payable with respect thereto;
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(c) shaft be regarded as making no representations and
having no responsibilities as to the validity,
sufficiency, value, or genuineness of any
certificates or the Shares represented thereby
surrendered to you hereunder and will not be
required to and will make no representations as to,
or be responsible for, the validity, sufficiency,
value or genuineness of the Merger;
(d) shall not be obligated to take any legal action
hereunder, if, however, you determine to take any
legal action hereunder, and, where the taking of
such action might, in your judgment, subject or
expose you to any expense or liability, you shall
not be required to act unless you shall have been
furnished with an indemnity satisfactory to you;
(e) may rely on, and be fully authorized and protected
in acting or failing to act upon any certificate,
instrument, opinion, notice, letter, telegram,
telex, facsimile transmission or other document or
security delivered to you and believed by you to be
genuine and to have been signed by the proper party
or parties;
(f) shaft not be liable or responsible for any recital
or statement contained in the Merger Agreement or
any other documents relating thereto;
(g) shall not be liable or responsible for any failure
of the Company to comply with any of its obligations
relating to the Merger, including without limitation
obligations under applicable securities laws;
(h) may rely on and shall be authorized and protected in
acting or failing to act upon the written,
telephonic and oral instructions with respect to any
matter relating to you acting as Exchange Agent
covered by this Agreement (or supplementing or
qualifying any such actions) of officers of the
Company;
(i) may consult counsel satisfactory to you, and the
advice of such counsel shall be full and complete
authorization and protection in respect to action
taken, suffered or omitted by you hereunder in good
faith and in accordance with the advice of such
counsel;
(j) may perform any of your duties hereunder either
directly or by or through agents or attorneys and
you shall not be responsible for any
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negligence on the part of any agent or attorney
appointed with reasonable care by you hereunder, and
(k) are not authorized, and shall have no obligation, to
pay any brokers, dealers, or soliciting fees to any
person.
13. In the event any question or dispute arises with respect to the
proper interpretation of the Merger Agreement or your duties hereunder or the
rights of the Company or of any stockholders surrendering certificates for
Shares pursuant to the Merger Agreement, you shall not be required to act and
shall not be held liable or responsible for your refusal to act until the
question or dispute has been judicially settled (and you may, if you in your
sole discretion deem it advisable, but shall not be obligated to, file a suit
in interpleader or for a declaratory judgment for such purpose) by final
judgment rendered by a court of competent jurisdiction, binding on all
stockholders and parties interested in the matter, which is no longer subject
to review or appeal, or settled by a written document in form and substance
satisfactory to you and executed by the Company and each such stockholder and
party. In addition, you may require for such purpose, but shall not be
obligated to require, the execution of such written settlement by all the
stockholders and all other parties that may have an interest in the settlement.
14. Any instructions given to you orally, as permitted by any
provision of this Agreement, shall be confirmed in writing by the Company as
soon as practicable. You shall not be liable or responsible and shall be fully
authorized and protected for acting, or failing to act, in accordance with any
oral instructions which do not conform with the written confirmation received
in accordance with this Section.
15. Escheatment: You shall identify, report and deliver all
unexchanged securities and related unclaimed property to all states and
jurisdictions for the Company in accordance with the applicable abandoned
property law.
16. The Exchange Agent shall be entitled to a fee, calculated based on
the Fee Schedule attached hereto as Exhibit A, which shall be paid by the
Company upon presentation of monthly invoices for all services rendered by the
Exchange Agent hereunder. The Exchange Agent shall also be entitled to
reimbursement from the Company for all reasonable expenses paid or incurred by
it in the administration of its duties hereunder, including, but not limited
to, all reasonable services rendered in performance of this Agreement.
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17. The Exchange Agent shall be indemnified and held harmless by the
Company, from and against any and all reasonable expenses, including reasonable
counsel fees and disbursements, or losses suffered by the Exchange Agent in
connection with any action, suit or other proceeding or investigation involving
any claim or liability, that, directly or indirectly, results from or arises
out of the Exchange Agent's actions as Exchange Agent hereunder; provided,
however, that the Exchange Agent shall not be indemnified and held harmless
with respect to such expenses or losses that result from or arise out of the
Exchange Agent's gross negligence, willful misconduct or bad faith. Promptly
after the receipt by the Exchange Agent of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Exchange
Agent shall, if a claim in respect thereof is to be made against the other
parties hereto, notify the other parties thereof in writing. The Company shall
be entitled to participate in the defense of such claim or legal action or
proceeding, and, if it so elects at any time after receipt of such notice, it
may assume the defense of any suit brought to enforce any such claim or of any
other such legal action or proceeding. For the purposes hereof, the term
"expense or loss" shall mean any amount paid or payable to satisfy a claim,
demand or liability, or in settlement of any claim, demand, action, suit or
proceeding settled with the express written consent of the Exchange Agent, and
all reasonable costs and expenses, including, but not limited to, reasonable
counsel fees and disbursements, paid or incurred in investigating or defending
against any such claims, demand, action, suit, proceeding or investigation.
18. Set forth in Exhibit B hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to
you the names and signatures of any other persons authorized to act for the
Company under this Agreement.
19. In the event that any claim of inconsistency between this
Agreement and the terms of the Merger arise, as they may from time to time be
amended, the terms of the Merger shall control, except with respect to the
duties, liabilities and rights, including compensation and indemnification, of
you as Exchange Agent, which shall be controlled by the terms of this
Agreement.
20. If any provision of this Agreement shall be held illegal, invalid,
or unenforceable by any court, this Agreement shall be construed and enforced
as if such provision had not been contained herein and shall be deemed an
Agreement among us to the MI extent permitted by applicable law.
21. The Company represents and warrants that (a) it is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the
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making and consummation of the Merger Agreement and the execution, delivery and
performance of all transactions contemplated thereby (including without
limitation this Agreement) have been duly authorized by all necessary corporate
action and will not result in a breach of or constitute a default under the
certificate of incorporation or bylaws of the Company or any indenture,
agreement or instrument to which it is a party or is bound, (c) this Agreement
has been duly executed and delivered by the Company and constitutes a legal,
valid, binding and enforceable obligation of it, (d) the Merger will comply in
all material respects with all applicable requirements of law and (e) to the
best of its knowledge, there is no litigation pending or threatened as of the
date hereof in connection with the Merger.
22. Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Company, to its address set forth beneath its signature to this Agreement, or,
if to the Exchange Agent, to BankBoston, N.A., 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Corporate Agency and Reorganization Department,
or to such other address as a party hereto shall notify the other parties.
23. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflict laws
rules or principles, and shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that this Agreement may
not be assigned by any party without the prior written consent of all other
parties.
24. No provision of this Agreement may be amended, modified, or
waived, except in writing signed by both parties.
Please acknowledge receipt of this letter and confirm your agreement
concerning your appointment as Exchange Agent, and the arrangements herein
provided, by signing and
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returning the enclosed copy hereof, whereupon this Agreement and YOUR
acceptance of the terms and conditions herein provided shall constitute a
binding Agreement between us.
Very truly yours,
THERMADYNE HOLDINGS CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for notices: Thermadyne Holdings Corporation
Corporate Secretary
000 Xxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Accepted as of the date above first written:
BANKBOSTON, N.A., AS EXCHANGE AGENT
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT A
EXHIBIT B
(Company's Letterhead)
Name Position Specimen Signatures
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