-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UwDUh8+Nx38F0qHCoHCivTe5i36hNaBHP0uCuISuC+wyuE8QXHiAjjXQcpsfiH2f MAzNspnWfLcH4vGTIhQVyw== 0000950103-00-000011.txt : 20000105 0000950103-00-000011.hdr.sgml : 20000105 ACCESSION NUMBER: 0000950103-00-000011 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000104 GROUP MEMBERS: DLJ CAPITAL INVESTORS, INC. GROUP MEMBERS: DLJ DIVERSIFIED ASSOCIATES LP GROUP MEMBERS: DLJ DIVERSIFIED PARTNERS, INC. GROUP MEMBERS: DLJ DIVERSIFIED PARTNERS, L.P. GROUP MEMBERS: DLJ DIVERSIFIED PARTNERS-A, L.P. GROUP MEMBERS: DLJ EAB PARTNERS, L.P. GROUP MEMBERS: DLJ ESC II, L.P. GROUP MEMBERS: DLJ FIRST ESC, L.P. GROUP MEMBERS: DLJ LBO PLANS MANAGEMENT CORPORATION GROUP MEMBERS: DLJ MERCHANT BANKING II, INC. GROUP MEMBERS: DLJ MERCHANT BANKING II, LLC GROUP MEMBERS: DLJ MERCHANT BANKING PARTNERS II, L.P. GROUP MEMBERS: DLJ MERCHANT BANKING PARTNERS II-A, L.P. GROUP MEMBERS: DLJ MILLENNIUM PARTNERS - A, L.P. GROUP MEMBERS: DLJ MILLENNIUM PARTNERS, L.P. GROUP MEMBERS: DLJ OFFSHORE PARTNERS II, C.V. GROUP MEMBERS: DLJMB FUNDING II, INC. GROUP MEMBERS: DONALDSON LUFKIN & JENRETTE INC /NY/ GROUP MEMBERS: DONALDSON LUFKIN & JENRETTE, INC. GROUP MEMBERS: UK INVESTMENT PLAN 1997 PARTNERS GROUP MEMBERS: UK INVESTMENT PLAN 1997, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: THERMADYNE HOLDINGS CORP /DE CENTRAL INDEX KEY: 0000850660 STANDARD INDUSTRIAL CLASSIFICATION: MACHINE TOOLS, METAL CUTTING TYPES [3541] IRS NUMBER: 742482571 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-43449 FILM NUMBER: 501291 BUSINESS ADDRESS: STREET 1: 101 S HANLEY ROAD CITY: ST LOUIS STATE: MO ZIP: 63105 BUSINESS PHONE: 3147215573 MAIL ADDRESS: STREET 1: 101 SOUTH HANLEY RD STREET 2: SUITE 300 CITY: ST LOUIS STATE: MO ZIP: 63105 FORMER COMPANY: FORMER CONFORMED NAME: TD II DATE OF NAME CHANGE: 19940131 FORMER COMPANY: FORMER CONFORMED NAME: THERMADYNE HOLDINGS CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DONALDSON LUFKIN & JENRETTE INC /NY/ CENTRAL INDEX KEY: 0000029646 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 131898818 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 277 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10172 BUSINESS PHONE: 2128923000 MAIL ADDRESS: STREET 1: 277 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10172 FORMER COMPANY: FORMER CONFORMED NAME: DONALDSON LUFKIN & JENRETTE INC /NY/ DATE OF NAME CHANGE: 19960319 SC 13D/A 1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2) THERMADYNE HOLDINGS CORPORATION (Name of Issuer) Common Stock $0.01 PAR VALUE (Title of Class of Securities) -------------- 883435109 (CUSIP Number) Donaldson, Lufkin & Jenrette, Inc. (Name of Persons Filing Statement) George R. Bason, Jr. Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Tel. No.: 212 450 4340 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 22 , 1999 (Date of Event which Requires Filing of this Statement) -------------- If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check the following: [ ] ================================================================================ Page 1 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 2 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking Partners II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 2,141,172 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 2,141,172 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,141,172 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 55.4% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 2 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 3 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking Partners II-A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 85,271 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 85,271 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 85,271 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.4% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 3 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 4 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Millennium Partners - A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 6,752 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 6,752 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,752 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 4 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 5 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Millennium Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 34,621 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 34,621 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,621 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.0% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 5 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 6 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ EAB Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 9,614 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 9,614 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,614 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 6 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 7 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Offshore Partners II, C.V. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Netherlands Antilles 7 SOLE VOTING POWER 105,292 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 105,292 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 105,292 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.9% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 7 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 8 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking II, LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 2,382,722 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 2,382,722 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,382,722 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 61.1% - See Item 5 14 TYPE OF REPORTING PERSON* OO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 8 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 9 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Merchant Banking II, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 2,382,722 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 2,382,722 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,382,722 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 61.1% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 9 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 10 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 125,183 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 125,183 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 125,183 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.5% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 10 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 11 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners-A, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 46,489 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 46,489 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 46,489 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.3% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 11 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 12 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Associates LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 171,672 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 WITH 9 SOLE DISPOSITIVE POWER 171,672 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 171,672 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.8% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 12 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 13 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Diversified Partners, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 171,672 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 171,672 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 171,672 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.8% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 13 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 14 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ First ESC, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 4,120 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 4,120 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,120 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 14 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 15 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ ESC II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 403,770 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 403,770 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 403,770 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.1% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 15 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 16 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ LBO Plans Management Corporation 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 417,504 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 417,504 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 417,504 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.3% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 16 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 17 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJMB Funding II, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 387,437 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 387,437 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 387,437 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 17 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 18 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON DLJ Capital Investors, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 3,399,089 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 3,399,089 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399,089 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 84.4% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 18 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 19 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON UK Investment Plan 1997 Partners 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 49,368 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 49,368 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 49,368 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.4% - See Item 5 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 19 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 20 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON UK Investment Plan 1997, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 49,368 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 49,368 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 49,368 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.4% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 20 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 21 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Donaldson Lufkin & Jenrette, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER 3,399,089 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 3,399,089 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER 3,399,089 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,399.089 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 84.4% - See Item 5 14 TYPE OF REPORTING PERSON* HC, CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 21 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 22 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Financial, Inc. (f/k/a The Equitable Companies Incorporated) 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DE 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* CO, HC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 22 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 23 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* HC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 23 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 24 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Finaxa 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* HC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 24 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 25 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Assurances I.A.R.D. Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 25 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 26 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Assurances Vie Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 26 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 27 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Courtage Assurance Mutuelle 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 27 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 28 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AXA Conseil Vie Assurance Mutuelle (f/k/a Alpha Assurances Vie Mutuelle) 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IC *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 28 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 29 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Claude Bebear, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 29 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 30 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Patrice Garnier, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 30 of 86 SCHEDULE 13D CUSIP No. 883435109 Page 31 of 31 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Henri de Clermont - Tonnerre, as AXA Voting Trustee 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* N/A 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Citizen of France 7 SOLE VOTING POWER See Item 5 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY See Item 5 EACH REPORTING PERSON WITH 9 SOLE DISPOSITIVE POWER See Item 5 10 SHARED DISPOSITIVE POWER See Item 5 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Item 5 (not to be construed as an admission of beneficial ownership) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 31 of 86 Item 1. Security and Issuer. The class of equity securities to which this statement relates is the common stock, $0.01 par value per share (the "Shares"), of Thermadyne Holdings Corporation, a Delaware corporation ("Thermadyne"). The principal executive offices of Thermadyne are located at 101 S. Hanley Rd. Ste. 300, St. Louis, MO 63105. Item 2. Identity and Background. This Schedule 13D is being filed jointly on behalf of the following persons (collectively, the "Reporting Persons"):(1) DLJ Merchant Banking Partners II, L.P., a Delaware corporation ("Partners II"); (2) DLJ Merchant Banking Partners II-A, L.P., a Delaware limited partnership ("Partners II-A"); (3) DLJ Millennium Partners, L.P., a Delaware limited partnership ("Millennium"); (4) DLJ Millennium Partners-A, L.P., a Delaware limited partnership ("Millennium-A"); (5) DLJ Offshore Partners II, C.V., a Netherlands Antilles limited partnership ("Offshore II"); (6) DLJ EAB Partners, L.P., a Delaware limited partnership ("EAB"); (7) DLJ Merchant Banking II, LLC, a Delaware limited liability company ("MBII LLC"); (8) DLJ Merchant Banking II, Inc., a Delaware corporation ("MBII INC"); (9) DLJ Diversified Partners, L.P., a Delaware limited partnership ("Diversified"); (10) DLJ Diversified Partners-A, L.P., a Delaware limited partnership ("Diversified-A"); (11) DLJ Diversified Associates, L.P., a Delaware limited partnership ("Diversified Associates"); (12) DLJ Diversified Partners, Inc., a Delaware corporation ("Diversified Partners"); (13) DLJ First ESC L.P., a Delaware limited partnership ("ESC"); (14) DLJ ESC II L.P., a Delaware limited partnership ("ESC II"); (15) DLJ LBO Plans Management Corporation, a Delaware corporation ("LBO"); (16) DLJMB Funding II, Inc., a Delaware corporation ("Funding II"); (17) DLJ Capital Investors, Inc., a Delaware corporation ("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general partnership ("1997 Partners"); (19) UK Investment Plan 1997, Inc. ("Plan 1997" and together with the previously listed entities, the "DLJ Entities"); (20) Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (21) AXA Financial, Inc. (formerly known as The Equitable Companies Incorporated), a Delaware corporation ("AXA Financial"); (22) AXA, a societe anonyme organized under the laws of France; (23) Finaxa, a societe anonyme organized under the laws of France; (24) AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized under the laws of France; (25) AXA Assurances Vie Mutuelle, a mutual insurance company organized under the laws of France; (26) AXA Courtage Assurance Mutuelle, a mutual insurance company organized under the laws of France; (27) AXA Conseil Vie Assurance Mutuelle (formerly known as Alpha Assurances Vie Mutuelle), a mutual insurance company organized under the laws of France; and (28) Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of a voting trust (the "AXA Voting Trust") established pursuant to a Voting Trust Agreement by and among AXA and the AXA Voting Trustees dated as of May 12, 1992, as amended January 22, 1997. Partners II, Partners II-A, Millennium, Millennium-A, Offshore II, EAB, Diversified, Diversified-A, Funding II, ESC, and ESC II are collectively referred to as the "DLJ Funds". Partners II, Partners II-A, Millennium and Millennium-A are Delaware limited partnerships which make investments for long term appreciation. MBII LLC is the Associate General Partner of Partners II and Partners II-A. MBII INC is the Managing General Partner of Partners II and Partners II-A. MBII LLC and MBII INC make all of the investment decisions on behalf of Partners II and Partners II-A. EAB is Delaware limited partnership which makes investments for long term appreciation. MBII LLC is the Associate General Partner of EAB and LBO is the Managing General Partner of EAB. MBII LLC and LBO make all of the investment decisions on behalf of EAB. Offshore II is a Netherlands Antilles limited partnership which makes investments for long term appreciation. MBII LLC is the Associate General Partner of Offshore II. MBII INC is the Advisory General Partner of Offshore II. MBII LLC and MBII INC make all of the investment decisions on behalf of Offshore II. MBII LLC is a Delaware limited liability company and is a registered investment adviser. As the Associate General Partner of Partners II, Partners II-A, Millennium, Millennium-A, EAB and Offshore II, MBII LLC, in Page 32 of 86 conjunction with MBII INC, participates in investment decisions made on behalf of these entities. MBII INC is the managing member of MBII LLC. MBII INC is a Delaware corporation and is a registered investment adviser. As the Managing General Partner of Partners II, Partners II-A, Millennium and Millennium-A, and the Advisory General Partner Offshore II, MBII INC is responsible for the day to day management of these entities and, in conjunction with MBII LLC, participates in investment decisions made on behalf of these entities. MBII INC is a wholly owned subsidiary of DLJCI. Diversified and Diversified-A are Delaware limited partnerships which make investments for long term appreciation. A portion of Diversified and Diversified-A's capital commitments are dedicated to making side-by-side investments with Partners II and Partners II-A, respectively. Diversified Associates is the Associate General Partner of Diversified and Diversified-A and Diversified Partners is the Managing General Partner of Diversified and Diversified-A. Diversified Partners is responsible for the day to day management of Diversified and Diversified-A. Diversified Associates is a Delaware limited partnership and a registered investment adviser. As the Associate General Partner of Diversified and Diversified-A, Diversified Associates, in conjunction with Diversified Partners and subject to the terms of the Diversified Agreement, participates in the management of investments of Diversified. Diversified Partners is the general partner of Diversified Associates. Diversified Partners is a Delaware corporation and a registered investment adviser. As the Managing General Partner of Diversified and Diversified-A, Diversified Partners is responsible for the day to day management of Diversified and Diversified-A. In conjunction with Diversified Associates, Diversified Partners participates in the investment decisions made on behalf of Diversified and Diversified-A. Diversified Partners is a wholly owned subsidiary of DLJCI. ESC and ESC II are Delaware limited partnerships and "employee securities companies" as defined in the Investment Company Act of 1940, as amended. LBO, as the Managing General Partner of ESC and ESC II, makes all of the investment decisions on behalf of ESC and ESC II. LBO is a Delaware corporation and a registered investment adviser. LBO is a wholly owned subsidiary of DLJCI. As the Managing General Partner of EAB, ESC and ESC II, LBO is responsible for the day-to-day management of EAB, ESC and ESC II. Funding II is a Delaware corporation which makes investments for long term appreciation generally side-by-side with Partners II. Funding II is a wholly owned subsidiary of DLJCI. DLJCI is a Delaware corporation a holding company. DLJCI is a wholly owned subsidiary of DLJ. 1997 Partners is a Delaware general partnership which makes investments for long term appreciation generally side-by-side with Partners II. Plan 1997 and DLJ are each general partners of 1997 Partners. Plan 1997 is a Delaware corporation. Plan 1997 is a wholly owned subsidiary of DLJ. DLJ is a publicly held Delaware corporation. DLJ directly owns all of the capital stock of DLJCI and Plan 1997. DLJ, acting on its own behalf or through its subsidiaries, is a registered broker/dealer and registered investment adviser engaged in investment banking, institutional trading and research, investment management and financial and correspondent brokerage services. AXA Financial is a Delaware corporation and is a holding company. As of June 30, 1999, AXA Financial owns, directly or indirectly, 70.5% of DLJ. Page 33 of 86 AXA is a societe anonyme organized under the laws of France and a holding company for an international group of insurance and related financial services companies. As of October 1, 1999, approximately 58% of the outstanding common stock of AXA Financial was beneficially owned by AXA. For insurance regulatory purposes, to insure that certain indirect minority shareholders of AXA will not be able to exercise control over AXA Financial and certain of its insurance subsidiaries, the voting shares of AXA Financial capital stock beneficially owned by AXA and its subsidiaries have been deposited into the AXA Voting Trust. For additional information regarding the AXA Voting Trust, reference is made to the Schedule 13D filed by AXA with respect to AXA Financial As of June 30, 1999, AXA directly owned 1.5% of DLJ. Finaxa is a societe anonyme organized under the laws of France and is a holding company. As of October 1, 1999, Finaxa controlled directly and indirectly approximately 20.3% of the issued ordinary shares (representing approximately 32.1% of the voting power) of AXA. Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, AXA Courtage Assurance Mutuelle, and AXA Conseil Vie Assurance Mutuelle (collectively, the "Mutuelles AXA") is a mutual insurance company organized under the laws of France. Each of the Mutuelles AXA is owned by its policy holders. As of October 1, 1999, the Mutuelles AXA, as a group, control approximately 61.7% of the issued shares (representing approximately 72.3% of the voting power) of Finaxa and 22.7% of the shares of Finaxa (representing 13.7% of the voting power) were owned by Paribas, a French bank. As of October 1, 1999, the Mutuelles AXA, in addition to their indirect beneficial ownership of AXA's ordinary shares through Finaxa, directly beneficially owned approximately 3.1% of the ordinary shares (representing approximately 4.9% of the voting power, of AXA. Acting as a group, the Mutuelles AXA control AXA and Finaxa. Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA Voting Trustees, exercise all voting rights with respect to the shares of AXA Financial capital stock beneficially owned by AXA and its subsidiaries that have been deposited in the AXA Voting Trust. The business address, citizenship and present principal occupation of each of the AXA Voting Trustees are set forth on Schedule I attached hereto. The address of the principal business and office of each of the DLJ Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of the principal business and principal office of Equitable is 1290 Avenue of the Americas, New York, New York 10104. The address of the principal business and principal office of AXA and the AXA Voting Trustees is 9 Place Vendome, 75001 Paris, France. The address of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de Chateaudun, 75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue Louis le Grand, 75002 Paris, France; and of AXA Conseil Vie Assurance Mutuelle is Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France. The name, business address, citizenship, present principal occupation or employment and the name and business address of any corporation or organization in which each such employment is conducted, of each executive officer or member, as applicable, of the Board of Directors, Supervisory Board, or the Conseil d'Administration (French analogue of a Board of Directors) of AXA Financial, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules A through N, respectively, attached hereto. During the past five (5) years, neither any of the Reporting Persons nor, to the best knowledge of any of the Reporting Persons, any of the other persons listed on Schedules A through N attached hereto, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to United States federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. Page 34 of 86 On December 22, 1999, the DLJ Funds purchased, for an aggregate purchase price of $25,000,000 purchased, pursuant to a Subscription Agreement ("Subscription Agreement") among Thermadyne, Thermadyne Mfg. LLC and the DLJ Funds (attached as Exhibit 3 hereto) dated December 22, 1999, warrants to purchase 436,965 Shares ("Warrants") and a principal amount of $25,000,000 Junior Subordinated Notes due 2009 (the "Notes") of Thermadyne Mfg. LLC (a specimen of which is attached as an exhibit to the Subscription Agreement). Each Warrant (a specimen of which is attached as an exhibit to the Subscription Agreement) is exercisable at a price of $0.01 per Warrant Share (subject to adjustment). Item 4. Purpose of Transaction. The DLJ Funds invested additional capital in Thermadyne and Thermadyne Mfg. LLC which will be used for general corporate purposes. Item 5. Interest in Securities of the Issuer. (a) and (b) The DLJ Entities, for the purposes of Rule 13d-3 promulgated under the Exchange Act, may be deemed to beneficially own, 3,339,089 Shares, representing approximately 84.4% of the outstanding Shares of Thermadyne. Refer to Exhibit 5 for the aggregate number and percentage of Shares beneficially owned by each DLJ Entity and the voting and dispositive power of each DLJ Entity. (c) No transactions in the Shares have been effected by the DLJ Funds, any other person controlling the DLJ Funds, or to the best of its knowledge, any of the persons named in Schedules A through N since October 23, 1999. (d) Inapplicable. (e) Inapplicable. As the sole stockholder of DLJCI and UKIP 1997 INC, DLJ may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Shares that may be deemed to be owned beneficially by each of DLJCI and UKIP 1997 INC. Because of AXA Financial's ownership of DLJ, AXA Financial may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Shares that may be deemed to be beneficially owned indirectly by DLJ. Each of DLJ and AXA Financial disclaims beneficial ownership of the Shares. Because of AXA's ownership interest in AXA Financial, and the AXA Voting Trustees' power to vote the AXA Financial shares placed in the AXA Voting Trust, each of AXA and the AXA Voting Trustees may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Shares that AXA Financial may be deemed to beneficially own indirectly. Because of the direct and indirect ownership interest in AXA of Finaxa and the Mutuelles AXA, each of Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the Investors' Shares that AXA may be deemed to beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and the AXA Voting Trustees expressly disclaim beneficial ownership of any of the Shares. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. See response to Item 3. Thermadyne, Thermadyne Mfg. LLC (the "Subsidiary") and the DLJ Funds have entered into a Registration Rights Agreement, attached as Exhibit 4 and incorporated by reference, which grants the DLJ Funds certain rights with respect to registration under the Securities Act of 1933, as amended (the "Act"). Under the terms of the Registration Rights Agreement, at any time after Thermadyne has filed its annual report on Form 10-K for the year ended December 31, 1999, the holders of 50% or more of the Notes or Warrants may demand Thermadyne or the Page 35 of 86 Subsidiary, as the case may be, to effect a registration of the Notes or Warrants under the Act. Thermadyne is obliged to effect one demand registration for the Warrants and the Subsidiary is obliged to effect up to two demand registrations for the Notes. If any Warrants are included in a demand registration, Thermadyne shall prepare a shelf registration statement under Rule 415 of the Act permitting the resale of Warrants and the shares issuable upon exercise of the warrants ("Warrant Shares") and shall use its best efforts to cause the warrant shelf registration statement to be declared effective within 90 days of the time such demand registration is effected. Thermadyne shall keep the warrant shelf registration statement effective until the earlier of (i) two years following the date as of which no Warrants remain outstanding and (ii) if all of the Warrants expire unexercised, December 15, 2009. Thermadyne's registration obligations in respect of the Warrants shall expire on the earlier of (i) the date on which each Warrant or Warrant Share has been disposed of in accordance with a warrant registration statement or when such Warrant Share is issued upon exercise of a Warrant in accordance with a registration statement and (ii) the date on which each Warrant or Warrant Share is distributed to the public pursuant to Rule 144 under the Act. The Subsidiary's registration obligations in respect of the Notes shall expire on the earlier of (i) the date on which each Note has been disposed in accordance with a note registration statement and (ii) the date on which each Note is distributed to the public pursuant to Rule 144 under the Act. The Registration Rights Agreement also grants "piggy-back" rights to the DLJ Funds to participate in certain registration statements filed by Thermadyne in respect of any equity securities of Thermadyne. The Registration Rights Agreement also contains a "lock-up" provision pursuant to which the DLJ Funds may be restricted from transferring Notes or Warrants in public sales during an underwriter's public offering of Notes or Warrants. Except for the agreements described in this Schedule 13D, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the persons enumerated in Item 2, and any other person, with respect to any securities of Thermadyne, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. A copy of each of the Subscription Agreement dated as of December 22, 1999 and the Registration Rights Agreement dated as of December 22, 1999 are attached hereto as Exhibits 3 and 4, respectively, and are incorporated herein by reference. The summaries of the terms of the Subscription Agreement and the Registration Rights Agreement set forth herein are qualified in their entirety by reference to Exhibits 3 and 4, respectively. Item 7. Material to be Filed as Exhibits. Exhibit 1: Joint filing agreement among the Reporting Persons (Previously filed with the Schedule 13D on March 12, 1998). Exhibit 2: Powers of Attorney (Previously filed with the Schedule 13D on March 12, 1998). Exhibit 3: Subscription Agreement dated as of December 22, 1999 among Thermadyne Holdings Corporation, Thermadyne Mfg. LLC and the DLJ Funds. Exhibit 4: Registration Rights Agreement dated as of December 22, 1999 among Thermadyne Holdings Corporation, Thermadyne Mfg. LLC and the DLJ Funds. Exhibit 5: Schedule of Reporting Person's holdings. Page 36 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Merchant Banking Partners II, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 37 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Merchant Banking Partners II-A, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 38 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Millennium Partners, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 39 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Millennium Partners -A, L.P. By DLJ Merchant Banking II, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 40 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ EAB Partners, L.P. By DLJ LBO Plans Management Corporation as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 41 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Offshore Partners II, C.V. By DLJ Merchant Banking II, Inc., as Advisory General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 42 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Merchant Banking II, LLC By DLJ Merchant Banking II, Inc., as Managing Member By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 43 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Merchant Banking II, Inc. By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 44 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Diversified Partners, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 45 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Diversified Partners-A, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 46 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Diversified Associates, L.P. By DLJ Diversified Partners, Inc., as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 47 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Diversified Partners, Inc. By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 48 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ First ESC, L.P. By DLJ LBO Plans Management Corporation, as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 49 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ ESC II, L.P. By DLJ LBO Plans Management Corporation, as Managing General Partner By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 50 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ LBO Plans Management Corporation By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 51 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJMB Funding II, Inc. By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 52 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 DLJ Capital Investors, Inc. By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 53 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 UK Investment Plan 1997 Partners By UK Investment Plan 1997, Inc. By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 54 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 UK Investment Plan 1997, Inc. By: /s/ Ivy Dodes ----------------------------------------- Name: Ivy Dodes Title: Vice President Page 55 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 Donaldson, Lufkin & Jenrette, Inc. By: /s/ Marjorie White ----------------------------------------- Name: Marjorie White Title: Vice President and Secretary Page 56 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 AXA Financial, Inc. By: /s/ Alvin H. Fenichel ----------------------------------------- Name: Alvin H. Fenichel Title: Senior Vice President and Controller Page 57 of 86 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: January 4, 2000 AXA Finaxa AXA Assurances I.A.R.D. Mutuelle AXA Assurances Vie Mutuelle AXA Courtage Assurance Mutuelle AXA Conseil Vie Assurance Mutuelle Claude Bebear, as AXA Voting Trustee Patrice Garnier, as AXA Voting Trustee Henri de Clermont-Tonnerre, as AXA Voting Trustee Signed on behalf of each of the above By: /s/ Alvin H. Fenichel ----------------------------------------- Name: Alvin H. Fenichel Title: Attorney-in-fact Page 58 of 86 Schedule A Executive Officers and Directors of DLJ Merchant Banking II, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of MBII INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MBII INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Hamilton E. James Chairman; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Nicole S. Arnaboldi Managing Director * Thompson Dean Managing Director * Peter T. Grauer Managing Director * David L. Jaffe Managing Director * Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer * Karl R. Wyss Managing Director Mark A. Competiello Vice President and Tax Manager Stuart S. Flamberg Vice President and Director of Taxes Carlos Garcia Managing Director Charles J. Hendrickson Treasurer Michael S. Isikow Vice President Edward A. Poletti Senior Vice President and Controller George Varughese Managing Director and Assistant Secretary Marjorie S. White Secretary - ---------------------- * Director Page 59 of 86 Schedule B Executive Officers and Directors of DLJ Diversified Partners, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DP INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DP INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Hamilton E. James Chairman; Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer; Managing Director and Chief Operating Officer, DLJ Merchant Banking II, Inc. * Marjorie S. White Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. Nicole S. Arnaboldi Managing Director Mark A. Competiello Vice President and Tax Manager Thompson Dean Managing Director Ivy B. Dodes Vice President Stuart S. Flamberg Director of Taxes Peter T. Grauer Managing Director Charles A. Hendrickson Treasurer Michael S. Isikow Vice President David L. Jaffe Managing Director Steven E. Lebow Managing Director Page 60 of 86 Edward A. Poletti Vice President and Controller Susan Schnabel Managing Director Barry A. Sholem Managing Director Yves B. Sisteron Managing Director Osamu Watanabe Vice President David R. Weil Managing Director Marjorie S. White Secretary Karl R. Wyss Managing Director - ------------ * Director Page 61 of 86 Schedule C Executive Officers and Directors of DLJMB Funding, II, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Funding II at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Funding II and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Charles J. Hendrickson Treasurer; Senior Vice President and Treasurer, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Secretary; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. Mark A. Competiello Vice President and Tax Manager Ivy B. Dodes Vice President Stuart S. Flamberg Vice President and Director of Taxes - ------------ * Director Page 62 of 86 Schedule D Executive Officers and Directors of DLJ LBO Plans Management Corporation The names of the Directors and the names and titles of the Executive Officers of DLJ LBO Plans Management Corporation ("LBO") and their business addresses and principal occupations are set forth below. Each Director's or Executive Officer's business address is that of LBO at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to LBO and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. * Vincent DeGiaimo Vice President; Senior Vice President and Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Marjorie S. White Vice President and Secretary; Vice President, Donaldson, Lufkin & Jenrette, Inc. Mark A. Competiello Vice President and Tax Manager Ivy B. Dodes Vice President and Assistant Secretary John S. Ficara Vice President Stuart S. Flamberg Director of Taxes Charles J. Hendrickson Treasurer Matthew Kelly Vice President Edward A. Poletti Vice President and Treasurer Osamu Walanabe Vice President and Treasurer Arthur Zuckerman Vice President - ------------ * Director Page 63 of 86 Schedule E Executive Officers and Directors of DLJ Capital Investors, Inc. The names of the Directors and the names and titles of the Executive Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DLJCI at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DLJCI and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * John S. Chalsty Chairman; Chairman, Donaldson, Lufkin & Jenrette, Inc. * Hamilton E. James Chief Executive Officer; Chairman, Banking Group, Managing Director, Donaldson, Lufkin & Jenrette, Inc. * Joe L. Roby Chief Operating Officer; President and Chief Executive Officer, Donaldson, Lufkin & Jenrette, Inc. * Anthony F. Daddino Executive Vice President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. Marjorie S. White Secretary Charles J. Hendrickson Treasurer Stuart S. Flamberg Director of Taxes Mark A. Competiello Vice President and Tax Manager - ------------ * Director Page 64 of 86 Schedule F Executive Officers and Directors of UK Investment Plan 1997, Inc. The names of the Directors and the names and titles of the Executive Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of UKIP 1997 INC at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to UKIP 1997 INC and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Stuart S. Flamberg Vice President and Director of Taxes; Senior Vice President and Director of Taxes, Donaldson, Lufkin & Jenrette, Inc. * Mark A. Competiello Vice President and Tax Manager; Senior Vice President and Tax Manager, Donaldson, Lufkin & Jenrette, Inc. Anthony F. Daddino President; Executive Vice President and Chief Financial Officer, Donaldson, Lufkin & Jenrette, Inc. Ivy B. Dodes Vice President Charles J. Hendrickson Treasurer Edward A. Poletti Vice President Osamu Walanabe Vice President Marjorie S. White Vice President, Secretary and Treasurer; Vice President and Secretary, Donaldson, Lufkin & Jenrette, Inc. - ------------ * Director Page 65 of 86 Schedule G Executive Officers and Directors of Donaldson, Lufkin & Jenrette, Inc. The names of the Directors and the names and titles of the Executive Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of DLJ at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to DLJ and each individual is a United States citizen. Name, Business Address Present Principal Occupation - ---------------------- ---------------------------- * John S. Chalsty Chairman * Joe L. Roby President and Chief Executive Officer * Henri de Castries (1) Senior Executive Vice President AXA Financial Services and Insurance 23, avenue Matignon Activities in the United States, United 75008 Paris, France Kingdom, Benelux, Northern and Eastern Europe * Denis Duverne (1) Senior Vice President - International AXA Life, AXA 23, avenue Matignon 75008 Paris, France * Louis Harris Chairman and Chief Executive Officer, LH Research LH Research (research) 152 East 38th Street New York, New York 10016-2605 * Henri G. Hottinguer (3) Chairman of Financier Hottinguer Financiere Hottinguer (banking) 43, rue Taitbout 75009 Paris, France * W. Edwin Jarmain (2) President, Jarmain Group Inc. (private Jarmain Group Inc. investment holding company) Suite 2525, Box 36 121 King Street, West Toronto, Ontario M5H 3T9 Canada * Francis Jungers Retired 19880 NW Nestucca Drive Portland, Oregon 97229 * Edward D. Miller President and Chief Executive Officer, 1290 Avenue of the Americas AXA Financial, Inc. New York, New York 10104 Page 66 of 86 Name, Business Address Present Principal Occupation - ---------------------- ---------------------------- * W. J. Sanders, III Chairman and Chief Executive Officer, Advanced Micro Devices, Inc. Advanced Micro Devices 901 Thompson Place Sunnyvale, CA 94086 * Stanley B. Tulin Executive Vice President and Chief Financial Officer, AXA Financial, Inc. * John C. West Chairman, Siebels Bruce Group, Inc. Bothea, Jordan & Griffin 23B Shelter Cove Hilton Head Island, SC 29928 * Hamilton E. James Chairman, Banking Group * Richard S. Pechter Chairman, Financial Services Group * Anthony F. Daddino Executive Vice President and Chief Financial Officer * David DeLucia Head, Fixed Income Division * Stuart M. Robbins Managing Director, Global Institutional Equities Group * Jane Mack Gould Senior Vice President and Portfolio Manager, Alliance * Michael Hegarty Vice Chairman and Chief Operating Officer, AXA Financial, Inc. - ---------- * Director (1) Citizen of the Republic of France (2) Citizen of Canada (3) Citizen of Switzerland Page 67 of 86 Schedule H Executive Officers and Directors of AXA Financial, Inc.(1) The names of the Directors and the names and titles of the Executive Officers of AXA Financial, Inc. ("AXA Financial") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of AXA Financial at 1290 Avenue of the Americas, New York, New York 10104. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Financial and each individual is a United States citizen. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear (1) Chairman of the Executive Board, AXA AXA 23, avenue Matignon 75008 Paris, France * John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette, Inc. Donaldson, Lufkin & Jenrette, Inc. 277 Park Avenue New York, NY 10172 * Francoise Colloc'h (1) Senior Executive Vice President, Group Human AXA Resources and Communications, AXA 23, avenue Matignon 75008 Paris, France * Henri de Castries (1) Chairman of the Board; Senior Executive Vice AXA President, Financial Services and Insurance 23, avenue Matignon Activities in the United States, United 75008 Paris, France Kingdom, Benelux, Northern and Eastern Europe, AXA * Joseph L. Dionne Chairman of the Board, The McGraw-Hill The McGraw-Hill Companies Companies (publishing) 1221 Avenue of the Americas New York, NY 10020 * Jacques Friedmann (1) Chairman of the Supervisory Board, AXA AXA 9, Place Vendome 75001 Paris France - ------------ (1) Formerly known as The Equitable Companies Incorporated Page 68 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Robert E. Garber Executive Vice President and General Counsel; Executive Vice President and Chief Legal Officer, The Equitable Life Assurance Society of the United States * Donald J. Greene, Esq. Counselor-at-Law, Of Counsel, LeBoeuf, Lamb, LeBoeuf, Lamb, Greene & MacRae Greene & MacRae, L.L.P. (law firm) 125 West 55th Street New York, NY 10019 * Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer, Fox-Pitt, Kelton Group Limited Fox-Pitt, Kelton Group Limited 35 Wilson Street (investment banking firm) London, England EC2M 2SJ * John T. Hartley Retired Chairman and Chief Executive Officer, Harris Corporation currently Director, Harris Corporation 1025 NASA Boulevard (manufacturer of electronic, telephone and Melbourne, FL 32919 copying systems) * John H. F. Haskell, Jr. Director and Managing Director, SBC Warburg Dillon, Read & Co., Inc. Dillon Read, Inc. (formerly Dillon, Read & 535 Madison Avenue Co., Inc.) (investment banking firm) New York, NY 10022 * Michael Hegarty Senior Vice Chairman and Chief Operating Officer; President and Chief Operating Officer, The Equitable Life Assurance Society of the United States * Mary R. (Nina) Henderson President, Bestfoods Grocery Bestfoods Grocery (food manufacturer) 700 Sylvan Avenue Englewood, NJ 07632 * W. Edwin Jarmain (3) President, Jarmain Group Inc. (private Jarmain Group Inc. investment holding company) Suite 2525 121 King Street West Toronto, Ontario M5H 3T9 Canada * Edward D. Miller President and Chief Executive Officer; Chairman and Chief Executive Officer, The Equitable Life Assurance Society of the United States Page 69 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Peter D. Noris Executive Vice President and Chief Investment Officer; Executive Vice President and Chief Investment Officer, The Equitable Life Assurance Society of the United States * Didier Pineau-Valencienne(1) Vice Chairman of Credit Suisse First Boston 64, rue de Miromesnil (investment banking) 75008 Paris, France * George J. Sella, Jr. Retired Chairman, President and Chief American Cyanamid Company Executive Officer, American Cyanamid P.O. Box 397 Company (manufacturer of pharmaceutical Newton, NJ 07860 products and agricultural products) Jose S. Suquet Executive Vice President; Senior Executive Vice President and Chief Distribution Officer; The Equitable Life Assurance Society of the United States * Peter J. Tobin Dean of the College of Business 8000 Utopia Parkway Administration, St. John's University College of Business Administration Bent Hall Jamaica, NY 11439 Stanley B. Tulin Vice Chairman and Chief Financial Officer; Vice Chairman and Chief Financial Officer, The Equitable Life Assurance Society of the United States * Dave H. Williams Chairman and Chief Executive Officer, Alliance Capital Alliance Capital Management Corp. Management Corporation (investment adviser) 1345 Avenue of the Americas New York, NY 10105 - ------------ * Director (1) Citizen of the Republic of France (2) Citizen of United Kingdom (3) Citizen of Canada
Page 70 of 86 Schedule I Members of Executive Committee and Supervisory Board of AXA The names and titles (for the Executive Committee members) of the Members of the Executive Committee and Supervisory Board of AXA and their business addresses and principal occupations are set forth below. If no address is given, the Member's business is 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA and each individual is a citizen of the Republic of France. Members of the Executive Board Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Claude Bebear Chairman of the Executive Board Gerard de La Martiniere Senior Executive Vice President, Chief Financial Officer Michel Pinault Senior Executive Vice President, Executive Board Secretary Page 71 of 86 Members of the Supervisory Board Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Jacques Friedmann Chairman of the Supervisory Board 9, Place Vendome 75008 Paris, France Antoine Bernheim Chairman, Assicurazioni Generali Lazard Freres et Cie S.p.A. (insurance) 121, boulevard Haussman 75008 Paris, France Jacques Calvet Former Chairman of the Executive 75, rue de Tilsitt Board, Peugeot S.A. (auto 75116 Paris, France manufacturer) Henri de Clermont - Tonnerre Chairman of the Supervisory Board, ERSA Qualis SCA (transportation) 90, rue de Miromesnil 75008 Paris, France David Dautresme General Partner, Lazard Freres et Cie Lazard Freres et Cie (investment banking) 121, boulevard Haussman 75008 Paris, France Guy Dejouany Honorary Chairman, Compagnie Vivendi Generale des Eaux (industry and General des Eaux services) 52, rue d'Anjou 75008 Paris, France Paul Desmarais (7) Chairman and Chief Executive Officer, Power Corporation of Canada Power Corporation (industry and 751, Square Victoria services) Montreal Quebec H3Y 3JY Canada Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-Poulenc S.A. Rhone-Poulenc S.A. (industry) 25, quai Paul Doumer 93408 Courbevoie Cedex France Michel Francois-Poncet Chairman of the Supervisory Board, 3, Rue d'Antin Compagnie Financiere de Paribas 75002 Paris, France (financial services and banking) Patrice Garnier Retired Page 72 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Anthony J. Hamilton (1) Group Chairman and Chief Executive Fox-Pitt, Kelton Group Limited of Fox-Pitt, Kelton Group Limited 35 Wilson Street (finance) London, England EC2M 2SJ Henri Hottinguer (6) Vice Chairman, Financier Hottinguer Financiere Hottinguer (banking) 43, rue Taitbout 75009 Paris, France Richard H. Jenrette (2) Senior Advisor, Donaldson, Lukfin & c/o Donaldson, Lukfin & Jenrette, Inc. Jenrette, Inc. (investment banking) 277 Park Avenue New York, New York 10172 Henri Lachmann Vice Chairman and Chief Executive Schneider S.A. Officer, Schneider S.A. (electrical 64-70 Av. Jean-Baptiste Clement equipment) 92646 Boulogne Cedex, France Gerard Mestrallet Chairman and Chief Executive Officer, Suez-Lyonnaise des Eaux Suez Lyonnaise des Eaux (finance) 1, rue d'Astorg 75008 Paris, France Friedel Neuber Chairman of the Executive Board, Westdeutsche Landesbank WestDeutsche Landesbank (banking) Girozentrale Herzogstrasse 15 D40127 Dusseldorf, Germany Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking) Sal Oppenheim Jr. & Cie Unter Sachsenrausen 4 50667 Koln, Germany Michel Pebereau Chairman and Chief Executive Officer, B.N.P. Banque Nationale de Paris (banking) 16, Boulevard des Italiens 75009 Paris, France Didier Pineau-Valencienne Vice Chairman Credit Suisse First 64, rue Miromesnit Boston (investment banking) 75008 Paris, France Bruno Roger General Partner, Lazard Freres & Cie Lazard Freres et Cie (investment banking) 121, Boulevard Haussman 75008 Paris, France Page 73 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Simone Rozes First Honorary President, Cour de 2, rue Villaret de Joyeuse Cassation (government) 75017 Paris, France Executive Officers Claude Bebear Chairman of the Executive Board AXA 23, avenue Matignon 75008 Paris, France Jean-Luc Bertozzi Executive Officer of AXA Tour AXA Assurances of I.A.R.D. Mutuelle and 1, place des Saisons AXA Assurances Vie Mutuelle 92083 Paris La Defense, France Donald Brydon (1) Senior Executive Vice President; AXA Investment Managers Chief Executive, AXA Investment 60 Gracechurch Street Managers Europe London EC3V OHR U.K. John Chalsty (2) Senior Executive Vice President; Donaldson, Lufkin & Jenrette, Inc. Chairman of Donaldson, Lufkin & 277 Park Avenue Jenrette, Inc. New York, NY 10172 Henri de Castries Senior Executive vice President, AXA Financial Services and Insurance 23, avenue Matignon Activities in the United States, 75008 Paris, France United Kingdom, Benelux, Northern and Eastern Europe Francoise Collach Senior Executive Vice President, AXA Group Human Resources and 23, avenue Matignon Communications 75008 Paris, France Jacques Deparis Executive Officer of AXA Courtage AXA Courtage and AXA Collectives 26, rue Louis le Grand 75002 Paris, France Michael Hegarty Vice Chairman and Chief Operating AXA Financial, Inc. Officer of AXA Financial, Inc. and 1290 Avenue of the Americas President and Chief Operating Officer New York, NY 10104 of The Equitable Life Assurance Society of the United States Page 74 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Tony Killen Senior Executive Vice President; National Mutual Holdings Managing Director of National Mutual 447 Collins Street Holdings Melbourne Victoria 3000 Australia Claas Kleyboldt (4) Senior Executive Vice President; AXA Colonia Konzern Chairman of the Executive Board Gereondriesch 9-11 AXA Colonia Konzern AB 50670 Koln, Germany Gerard de La Martiniere Senior Executive Vice President and AXA Chief Financial Officer 23 avenue Matignon 75008 Paris, France Edward Miller(2) President and Chief Executive Officer AXA Financial, Inc. of AXA Financial, Inc.; Chairman and 1290 Avenue of the Americas Chief Executive Officer of The New York, NY 10104 Equitable Life Assurance Society of the United States Jean-Marie Nessi Chairman and Chief Executive Officer AXA Reassurance of AXA Reassurance 39, rue de colisee 75008 Paris, France Francois Pierson Executive Officer of AXA Conseil AXA Conseil I.A.R.D. and AXA Conseil Vie 21, rue de Chateaudun 75009 Paris, France Michel Pinault Senior Executive Vice President and AXA Secretary of the Executive Board 23, avenue Matignon 75008 Paris, France Claude Tendil Senior Executive Vice President; AXA Chairman and Chief Executive Officer 23, avenue Matignon - French Insurance activities, 75008 Paris, France international risks, transborder insurance projects Dave H. Williams (2) Senior Executive Vice-President; Alliance Capital Chairman of Alliance Capital 1345 Avenue of the Americas Management Corporation New York, NY 10105 Page 75 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- Mark Wood(1)(3) Senior Executive Vice President; SLPH Managing Director fo Sun Life & 107 Cheapside Provincial Holdings (insurance) London EC2V 6DU U.K. - ---------- (1) Citizen of the United Kingdom (2) Citizen of the United States of America (3) Citizen of Belgium (4) Citizen of Germany (5) Citizen of Australia (6) Citizen of Switzerland (7) Citizen of Canada Page 76 of 86 Schedule J Executive Officers and Members of Conseil d'Administration of FINAXA The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of Finaxa and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of Finaxa at 23, avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Finaxa and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman and Chief Executive Officer; Chairman of the Executive Board, AXA Henri de Castries Senior Executive Vice President, Financial Services and Insurance Activities in the United States, United Kingdom, Benelux, Northern and Eastern Europe * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis ERSA SCA (transportation) 90, rue de Miromesnil 75008 Paris, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone- Permanent Representative of Poulenc S.A. (industry) AXA Assurances IA.R.D. Mutuelle Rhone Units 25, quai Paul Doumer 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Hottinguer (1) Vice Chairman, Financier Hottinguer (banking) Financiere Hottinger 43, rue Taitbout 75009 Paris, France * Paul Hottinguer (1) Chairman, Financier Hottinguer (banking) Financiere Hottinger 43, rue Taitbout 75009 Paris, France Page 77 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Henri Lachmann Vice Chairman and Chief Executive Officer, Schneider S.A. Schneider S.A. (electrical equipment) 64-70, Av. Jean-Baptiste Clement 92646 Boulogne Cedex, France * Andre Levy-Lang Chairman of Executive Board, Paribas Paribas (banking) 3, rue d'Antin 75002 Paris, France * Christian Manset Member of the Executive Board, Paribas Paribas 3, rue d'Antin 75002 Paris, France * Georges Rousseau Retired Le Hameau de Verguetot 76430 Oudalle, France * Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking) BBV Paseo de la Castillone, 81 28046 Madrid, Spain Gerard de la Martiniere Chief Executive Officer; Senior Executive Vice President and Chief Financial Officer of AXA - ------------ * Member, Conseil d'Administration (1) Citizen of Switzerland (2) Citizen of Spain
Page 78 of 86 Schedule K Executive Officers and Members of Conseil d'Administration of AXA ASSURANCES I.A.R.D. MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA 75008 Paris, France * Jean-Luc Bertozzi Executive Officer of AXA Assurances I.A.R.D. Tour AXA and AXA Assurances Vie 1, place des Saisons 92083 Paris La Defense, France Jean-Pierre Chaffin Chairman Representing ASSE Federation de la Metallurgie CFE-CGC 5, rue la Bruyere 75009 Paris, France * Gerard Coutelle Retired 7, rue Gounot 75007 Paris, France * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities in the 75008 Paris, France United States, United Kingdom, Benelux, Northern and Eastern Europe * Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone- Rhone-Poulenc Poulenc S.A. (industry) 25, quai Paul Doumer 92408 Courbevoie Cedex France * Henri Lachmann Vice President; Vice Chairman and Chief Schneider S.A. Executive Officer, Schneider S.A. (electrical 64-70, Av. Jean-Baptiste Clement equipment) 92646 Boulogne, France Page 79 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Francois Richer Retired 82, Avenue de Wagram 75017 Paris, France Georges Rousseau Retired * Lehameau de Verguetot 76430 Oudalle, Frances * Claude Tendil Senior Executive Vice President of AXA; AXA Chairman and Chief Executive Officer-French 23, avenue Matignon Insurance activities, international risks, 75008 Paris, France transborder insurance projects * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis ERSA SCA (transportation) 90, rue de Miromesnil 75008 Paris, France Jean de Ribes Manager Fortuny Fortune Conseil 5, avenue Percier 75008 Paris, France - ------------ * Member, Conseil d'Administration
Page 80 of 86 Schedule L Executive Officers and Members of Conseil d'Administration of AXA ASSURANCES VIE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Assurances Vie Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA 75008 Paris, France * Jean-Luc Bertozzi Executive Officer of AXA Assurances I.A.R.D Tour AXA and AXA Assurance Vie 1, place des Saisons 92083 Paris La Defense, France * Henri de Castries Senior Executive Vice President, Financial 23, avenue Matignon Services and Life Insurance Activities in the 75008 Paris, France United States, United Kingdom, Benelux, Northern and Eastern Europe * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis ERSA SCA (transportation) 90, rue de Miromesnil 75008 Paris, France * Gerard Coutelle Retired * Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone- Rhone-Poulence S.A. Poulenc S.A. (industry) 25, quai Paul Doumer 92408 Courbevoie Cedex France * Henri Lachmann Vice Chairman; Vice Chairman and Chief 64-70, Av Jean-Baptiste Clement Executive Officer, Schneider S.A. (electrical 92646 Boulogne Cedex, France equipment) * Francois Richer Retired 82, avenue de Wagram 75017 Paris, France Page 81 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Georges Rousseau Retired Le Hameau de Verguetot 76430 Oudalle, France * Claude Tendil Senior Executive Vice President of AXA; AXA Chairman and Chief Executive Officer - 23, avenue Matignon French Insurance activities, international risks, 75008 Paris, France transborder insurance projects * Jean-Pierre Chaffin Chairman Representing ASSE Federation de la Metallurgie CFE-CGC 5, rue La Bruyere 75009 Paris, France * Jean de Ribes Manager Fortuny Fortune Conseil 5 Avenue Percier 75008 Paris, France - ------------ * Member, Conseil d'Administration
Page 82 of 86 Schedule M Executive Officers and Members of Conseil d'Administration of AXA COURTAGE ASSURANCE MUTUELLE The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, 23, avenue Matignon AXA 75008 Paris, France * Francis Cordier Retired * Gerard Coutelle Retired 7, rue Gounot 75007 Paris, France * Henri de Castries Senior Executive Vice President, Financial AXA Services and Insurance Activities in the United 23, avenue Matignon States, United Kingdom, Benelux, Northern 75008 Paris, France and Eastern Europe * Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone- Rhone-Poulenc S.A. Poulenc S.A. (industry) 25, quai Paul Doumer 92408 Courbevoie Cedex France * Patrice Garnier Retired Latreaumont 76360 Baretin, France * Henri Lachmann Vice Chairman; Vice Chairman and Chief Schneider S.A. Executive Officer, Schneider S.A. (electrical 64-70, Av. Jean-Baptiste Clement equipment) 92646 Boulogne Cedex, France * Jean de Ribes Manager Fortuny Fortune Conseil 5 avenue Percier 75008 Paris, France Page 83 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Georges Rousseau Retired Le Hameau de Verguetot 76430 Oudalle, France * Claude Tendil Senior Executive Vice President; Chairman and Tour Assur 38F Chief Executive Officer-French Insurance 92083 Paris La Defense, France Activities, international risks, transborder insurance projects * Jean - Pierre Chappin Chairman Representing ASSE Federation de la Metallurgie CFE-CGC 5, rue de La Bruyere 75008 Paris, France Jacques Deparis Executive Officer of AXA Assurances I.A.R.D. and AXA collectives * Claude Tendil Senior Executive Vice President; Chairman and AXA Chief Executive Officer - French Insurance 23, avenue Matignon Activities, International risks, transborder 75008 Paris, France insurance projects - ------------ * Member, Conseil d'Administration
Page 84 of 86 Schedule N Executive Officers and Members of Conseil d'Administration of AXA CONSEIL VIE ASSURANCE MUTUELLE(1) The names of the Members of Conseil d'Administration and the names and titles of the Executive Officers of AXA Conseil Vie Assurance Mutuelle and their business addresses and principal occupations are set forth below. If no address is given, the Member's or Executive Officer's business address is that of AXA Conseil Vue Assurance Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to AXA Conseil Vie Assurance Mutuelle and each individual is a citizen of the Republic of France. Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Claude Bebear Chairman; Chairman of the Executive Board, AXA AXA 23, avenue Matignon 75008 Paris, France * Bernard Cornille Retired * Henri de Castries Senior Executive Vice President, Financial AXA Services and Life Insurance Activities in the 23, avenue Matignon United States, United Kingdom, Benelux, 75008 Paris, France Northern and Eastern Europe * Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis ERSA SCA (transportation) 90 rue de Miromesnil 75008 Paris, France * Fracis Cordier Retired * Jean de Ribes Manager Fortuny Fortune Conseil 5 avenue Percier 75008 Paris, France * Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone- Rhone-Poulenc S.A. Poulenc S.A. (manufacturer of chemicals and 25, Quai Paul Doumer agricultural products) 92408 Courbevoie Cedex, France * Patrice Garnier Retired - ----------- (1) Formerly known as Alpha Assurances Vie Mutuelle Page 85 of 86 Name, Business Address Present Principal Occupation ---------------------- ---------------------------- * Henri Lachmann Vice Chairman; Chairman and Chief Executive Schneider S.A. Officer, Schneider S.A. (electric equipment) 64-70, Av. Jean-Baptiste Clement 92646 Boulogne Cedex, France * Francois Richer Retired * Claude Tendil Senior Executive Vice President, AXA; AXA Chairman and Chief Executive Officer, French 23, avenue Matignon insurance activities, international risks, 92083 Paris La Defense, France transborder insurance projects * Francis Vaudour Retired Francois Pierson Executive Officer, AXA Conseil Vie and AXA AXA Conseil Conseil I.A.R.D. 21, rue de Chateaudun 75009 Paris, France - ------------ * Member, Conseil d'Administration
Page 86 of 86 EX-3 2 EXHIBIT 3 SUBSCRIPTION AGREEMENT dated as of December 22, 1999 by and among DLJ MERCHANT BANKING PARTNERS II, L.P., DLJ MERCHANT BANKING PARTNERS II-A, L.P., DLJ OFFSHORE PARTNERS II, C.V., DLJ DIVERSIFIED PARTNERS, L.P., DLJ DIVERSIFIED PARTNERS-A, L.P., DLJMB FUNDING II, INC., DLJ MILLENNIUM PARTNERS, L.P., DLJ MILLENNIUM PARTNERS-A, L.P., DLJ EAB PARTNERS, L.P., DLJ ESC II L.P., DLJ FIRST ESC, L.P., THERMADYNE HOLDINGS CORPORATION and THERMADYNE MFG. LLC relating to the purchase and sale of Junior Subordinated Notes due 2009 of Thermadyne Mfg. LLC and Warrants to Purchase Shares of Common Stock of Thermadyne Holdings Corporation TABLE OF CONTENTS ---------------------- PAGE ---- ARTICLE 1 DEFINITIONS SECTION 1.01. Definitions.....................................................1 ARTICLE 2 PURCHASE AND SALE SECTION 2.01. Purchase and Sale...............................................5 SECTION 2.02. Closing.........................................................5 SECTION 2.03. Purchase Price Allocation.......................................5 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE ISSUERS SECTION 3.01. Corporate Existence and Power...................................6 SECTION 3.02. Corporate Authorization.........................................6 SECTION 3.03. Noncontravention................................................6 SECTION 3.04. Capitalization; Indebtedness....................................7 SECTION 3.05. Subsidiaries....................................................8 SECTION 3.06. Parent 34 Act Reports...........................................8 SECTION 3.07. Litigation......................................................8 SECTION 3.08. Environmental Matters...........................................8 SECTION 3.09. Licenses and Permits............................................9 SECTION 3.10. Financial Statements............................................9 SECTION 3.11. Investment Company Act.........................................10 SECTION 3.12. Registration Obligations.......................................10 SECTION 3.13. No Violation of Regulation G, T, U or X........................10 SECTION 3.14. No Ratings Decline.............................................10 SECTION 3.15. No Material Change.............................................10 SECTION 3.16. No Solicitation................................................11 SECTION 3.17. Labor Matters..................................................11 SECTION 3.18. Accounting Controls............................................11 SECTION 3.19. Intellectual Property..........................................11 SECTION 3.20. Indenture......................................................12 SECTION 3.21. No Registration................................................12 SECTION 3.22. Certificates...................................................12 PAGE ---- ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE BUYERS SECTION 4.01. Corporate/Partnership Existence and Power......................12 SECTION 4.02. Corporate/Partnership Authorization............................12 SECTION 4.03. Governmental Authorization.....................................12 SECTION 4.04. Noncontravention...............................................13 SECTION 4.05. Purchase for Investment........................................13 SECTION 4.06. Litigation.....................................................13 SECTION 4.07. Finders' Fees..................................................13 ARTICLE 5 COVENANTS OF THE PARTIES SECTION 5.01. Best Efforts; Further Assurances...............................14 SECTION 5.02. Certain Filings................................................14 SECTION 5.03. Public Announcements...........................................14 ARTICLE 6 CONDITIONS TO CLOSING SECTION 6.01. Conditions to Obligations of each Party........................14 SECTION 6.02. Conditions to Obligation of the Buyers.........................15 SECTION 6.03. Conditions to Obligation of the Issuers........................16 ARTICLE 7 SURVIVAL; INDEMNIFICATION SECTION 7.01. Survival.......................................................17 SECTION 7.02. Indemnification................................................18 SECTION 7.03. Procedures.....................................................18 ARTICLE 8 MISCELLANEOUS SECTION 8.01. Notices........................................................19 SECTION 8.02. Amendments and Waivers.........................................20 SECTION 8.03. Expenses.......................................................20 SECTION 8.04. Successors and Assigns.........................................20 SECTION 8.05. Governing Law..................................................20 SECTION 8.06. Jurisdiction...................................................21 ii SECTION 8.07. WAIVER OF JURY TRIAL...........................................21 SECTION 8.08. Counterparts; Third Party Beneficiaries........................21 SECTION 8.09. Appointment of Agent...........................................21 SECTION 8.10. Entire Agreement...............................................22 SECTION 8.11. Captions.......................................................22 SECTION 8.12. Enforcement of Voting Rights...................................22 EXHIBITS Exhibit A -- Form of Notes, including attached Form of Indenture Exhibit B -- Form of Registration Rights Agreement Exhibit C -- Form of Warrants SCHEDULE Schedule 3.05 -- Subsidiaries SUBSCRIPTION AGREEMENT AGREEMENT dated as of December 22, 1999 by and among DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJMB Funding II, Inc., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ EAB Partners, L.P., DLJ ESC II L.P. and DLJ First ESC, L.P., (each of the foregoing, a "DLJ Buyer", and collectively, the "DLJ Buyers" and sometimes referred to as the "Buyers"), Thermadyne Holdings Corporation, a Delaware corporation ("Parent"), and Thermadyne Mfg. LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent (the "Company"). W I T N E S S E T H : WHEREAS, the Buyers desire to purchase, and Parent and the Company desire to issue and sell to the Buyers, the Securities (as defined below), upon the terms and subject to the conditions hereinafter set forth. NOW THEREFORE, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS SECTION 1.01. Definitions. (a) The following terms, as used herein, have the following meanings: "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided that no securityholder of Parent shall be deemed an Affiliate of any other securityholder of Parent or any Subsidiary solely by reason of any investment in Parent. For the purpose of this definition, the term "control" (including with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Closing Date" means the date of the Closing. "Code" means the Internal Revenue Code of 1986, as amended. "Common Stock" means the Common Stock, par value $0.01 per share, of Parent. "Credit Agreement" means the Credit Agreement dated as of May 22, 1998 among the Company, Comweld Group Pty. Ltd., GenSet S.p.A., Thermadyne Welding Products Canada Limited, the various financial institutions party thereto from time to time, DLJ Capital Funding, Inc., as syndication agent, Societe Generale, as documentation agent and ABN AMRO Bank N.V., as administrative agent, as amended from time to time, together with the related documents thereto (including, without limitation, the term loans, revolving loans and swingline loans thereunder, the letters of credit issued pursuant thereto and any guarantees and security documents). "Federal Tax" means any Tax imposed under Subtitle A of the Code. "Final Determination" shall mean (i) any final determination of liability in respect of a Tax that, under applicable law, is not subject to further appeal, review or modification through proceedings or otherwise (including the expiration of a statute of limitations or a period for the filing of claims for refunds, amended returns or appeals from adverse determinations), including a "determination" as defined in Section 1313(a) of the Code or execution of an Internal Revenue Service Form 870AD or (ii) the payment of Tax by the Buyers, Parent or a Subsidiary, whichever is responsible for payment of such Tax under applicable law, with respect to any item disallowed or adjusted by a Taxing Authority, provided that such responsible party determines that no action should be taken to recoup such payment and the other party agrees. "Indenture" means the Indenture relating to the Notes, substantially in the form attached to Exhibit A hereto. "Lien" means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance or other adverse claim of any kind in respect of such property or asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset. 2 "Material Adverse Effect" means a material adverse effect on the condition (financial or otherwise), business, assets or results of operations of Parent and the Subsidiaries, taken as whole. "1933 Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "Notes" means the Junior Subordinated Notes of the Company due 2009, a specimen certificate substantially the form of which is attached hereto as Exhibit A. "Parent 1934 Act Reports" means the reports filed by Parent in compliance with the 1934 Act during Parent's most recent fiscal year and, in any event, Parent's annual report on Form 10-K for the year ended December 31, 1998. "Person" means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Registration Rights Agreement" means the Registration Rights Agreement, substantially in the form attached hereto as Exhibit B. "Securities" means, collectively, the Notes and the Warrants. "Subsidiary" means any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by Parent (including, without limitation, the Company). "Tax" means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including, but not limited to, withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any governmental authority (a "Taxing Authority") responsible for the imposition of any such tax (domestic or foreign), (ii) in the case of Parent or any Subsidiary, liability for the payment of any amount of the type described in clause (i) as a result of being or having been before the Closing Date a member of an affiliated, consolidated, combined or unitary group, or a party to any agreement or arrangement, as a result of which liability of Parent or any Subsidiary to a Taxing Authority is determined or taken 3 into account with reference to the liability of any other Person, and (iii) liability of Parent or any Subsidiary for the payment of any amount as a result of being party to any Tax Sharing Agreement or with respect to the payment of any amount of the type described in (i) or (ii) as a result of any existing express or implied obligation (including, but not limited to, an indemnification obligation). "Tax Sharing Agreements" means all existing agreements or arrangements (whether or not written) binding Parent or any Subsidiary that provide for the allocation, apportionment, sharing or assignment of any Tax liability or benefit, or the transfer or assignment of income, revenues, receipts, or gains for the principal purpose of determining any person's Tax liability. "Transaction Documents" means this Agreement, the Notes, the Warrants, the Indenture and the Registration Rights Agreement. "Transactions" means the transactions contemplated by the Transaction Documents. "Warrants" means warrants to purchase an aggregate of 436,965 shares of Common Stock, a specimen certificate substantially the form of which is attached hereto as Exhibit C. (b) Each of the following terms is defined in the Section set forth opposite such term: Term Section Authorizations 3.09 Buyers recitals Closing 2.02 Company recitals Damages 7.02 DLJ Buyers recitals Environmental Laws 3.08(a) ERISA 3.08(a) Indemnified Party 7.03 Indemnifying Party 7.03 intellectual property 3.19 Issuer 2.01 Parent recitals Parent Securities 3.04 Purchase Price 2.01 4 ARTICLE 2 PURCHASE AND SALE SECTION 2.01. Purchase and Sale. Upon the terms and subject to the conditions of this Agreement, Parent and the Company (each, an "Issuer") agree to issue and sell to each Buyer, and each Buyer agrees, severally and not jointly, to purchase from the applicable Issuer at the Closing such Notes and Warrants as are set forth opposite such Buyer's name on Schedule 2.01. The aggregate purchase price (the "Purchase Price") for the Notes and the Warrants applicable to each Buyer is set forth opposite such Buyer's name on Schedule 2.01. The aggregate Purchase Price payable by all Buyers shall be paid at Closing as provided in Section 2.02. SECTION 2.02. Closing. The closing (the "Closing") of the purchase and sale of the Securities hereunder shall take place at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York, as soon as possible after satisfaction of the conditions set forth in Article 6, or at such other time or place as the parties hereto may agree. At the Closing: (a) Each Buyer shall deliver to the applicable Issuer the amounts set forth opposite its name on Schedule 2.01 with respect to the Notes and the Warrants to be purchased by it, in immediately available funds by wire transfer to an account of the applicable Issuer designated by such Issuer, by notice to the Buyers, not later than two business days prior to the Closing Date. (b) The applicable Issuer shall deliver to each Buyer duly-executed Notes and Warrants, as the case may be, in the amounts set forth opposite such Buyer's name on Schedule 2.01. SECTION 2.03. Purchase Price Allocation. The Issuers and the Buyers agree that the Purchase Price shall be allocated to the Notes and the Warrants for U.S. federal income tax purposes in a manner to be mutually agreed by the Issuers and the Buyers. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE ISSUERS Parent and the Company jointly and severally represent and warrant to the Buyers as of the Closing Date that: 5 SECTION 3.01. Corporate Existence and Power. (a) Each Issuer is a corporation duly incorporated or a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, as the case may be, and has all requisite power and authority to carry on its business as now conducted. Each Issuer is duly qualified to do business as a foreign corporation or foreign limited liability company, as the case may be, and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. (b) All equity interests of each of the Issuers have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights. (c) Neither Issuer nor any of its subsidiaries is in violation of its respective organizational documents or in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Issuer or any of its subsidiaries is a party or by which such Issuer or any of its subsidiaries or their respective property is bound, except for such defaults which, singly or in the aggregate, would not have a Material Adverse Effect. SECTION 3.02. Corporate Authorization. The execution, delivery and performance by each Issuer of the Transaction Documents to which such Issuer is a party and the consummation of the transactions contemplated thereby are within such Issuer's powers and have been duly authorized by all necessary action on the part of such Issuer. This Agreement constitutes (and, when executed and delivered, each other Transaction Document to which each Issuer is a party will constitute) a valid and binding agreement of each Issuer, enforceable against each of the Issuers in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) rights to indemnity and contribution thereunder may be limited by applicable law. SECTION 3.03. Noncontravention. The execution, delivery and performance by each Issuer of the Transaction Documents to which such Issuer is a party and the consummation of the transactions contemplated thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under federal securities or Blue Sky laws of the various states or have been or will be obtained prior to the Closing Date), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, (A) the charter or 6 bylaws or limited liability company agreement of such Issuer or any of its subsidiaries or (B) any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to such Issuer and its subsidiaries, taken as a whole, to which such Issuer or any of its subsidiaries is a party or by which such Issuer or any of its subsidiaries or their respective property is bound, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such issuer any of its subsidiaries or their respective property, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which such Issuer or any of its subsidiaries is a party or by which such Issuer or any of its subsidiaries or their respective property is bound, or (v) result in the termination, suspension or revocation of any Authorization (as defined below) of such Issuer or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization, except, in the case of clauses (i), (ii)(B), (iv) and (v), as would not, singly or in the aggregate, have a Material Adverse Effect. SECTION 3.04. Capitalization; Indebtedness. (a) The authorized capital stock of Parent consists of 30,000,000 shares of Common Stock and 15,000,000 shares of Preferred Stock. After giving effect to the Closing, there will be outstanding (i) 3,590,326 shares of Common Stock and 2,000,000 shares of Preferred Stock, (ii) options to purchase 342,356 shares of Common Stock, (iii) the rights associated with Parent's rights plan in place as of the date hereof and (iv) the Warrants. (b) All outstanding shares of capital stock of Parent have been duly authorized and validly issued and are fully paid and non-assessable. Other than the Parent Securities, there are no outstanding (i) shares of capital stock or voting securities of Parent, (ii) securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent or (iii) options or other rights to acquire from Parent, or other obligation of Parent to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Parent (the items in clauses 3.04(b)(i), 3.04(b)(ii), 3.04(b)(iii) and 3.04(b)(iv) being referred to collectively as the "Parent Securities"). There are no outstanding obligations of Parent or any Subsidiary to repurchase, redeem or otherwise acquire any Parent Securities, except the obligation of Parent to redeem its Preferred Stock in accordance with the terms thereof. (c) When executed and delivered pursuant to this Agreement, the Notes and the Warrants will constitute valid and binding obligations of the applicable Issuer. Upon the consummation of the Closing, the shares of Common Stock issuable upon the exercise of the Warrants will have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such 7 exercise and payment of the exercise price thereof, will be validly issued, fully paid and non-assessable, and the issuance of such shares is not subject to any preemptive or similar rights. SECTION 3.05. Subsidiaries. (a) The entities listed on Schedule 3.05 hereto are the only subsidiaries, direct or indirect, of Parent. Except as otherwise set forth on such Schedule, all of the outstanding equity interests of each of Parent's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, as applicable, and are owned by Parent, directly or indirectly through one or more subsidiaries, free and clear of any Lien. SECTION 3.06. Parent 34 Act Reports. Parent has made all required filings under the 1934 Act. All of the information contained in the Parent 34 Act Reports is correct in all material respects as of the date thereof and not misleading. SECTION 3.07. Litigation. (a) No action has been taken and no law, statute, rule or regulation or order has been enacted, adopted or issued by any governmental agency or body which prevents the execution, delivery and performance of any of the Transaction Documents, or suspends the sale of the Notes or the Warrants in any jurisdiction and no injunction, restraining order or other order or relief of any nature by a federal or state court or other tribunal of competent jurisdiction has been issued with respect to any Issuer which would prevent or suspend the issuance or sale of the Notes or the Warrants in any jurisdiction. (b) There are no legal or governmental proceedings pending or threatened to which either Issuer or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. SECTION 3.08. Environmental Matters. (a) Neither Issuer nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any provisions of the Foreign Corrupt Practices Act or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (b) Except as otherwise set forth in the Parent 1934 Act Reports, there are no costs or liabilities associated with Environmental Laws (including, without 8 limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. SECTION 3.09. Licenses and Permits. Each Issuer and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each Issuer and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain no restrictions that are burdensome to such Issuer or any of its subsidiaries; except, in each case, where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. SECTION 3.10. Financial Statements. The historical financial statements, together with related notes forming part of the Parent 34 Act Reports (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of Parent and its subsidiaries on the basis stated in the Parent 34 Act Reports at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data set forth in the Parent 34 Act Reports (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of Parent. SECTION 3.11. Investment Company Act. None of the Issuers is or, after giving effect to the offering and sale of the Securities and the application of the 9 net proceeds thereof will be, and "investment company," as such term is defined in the Investment Company Act of 1940 as amended. SECTION 3.12. Registration Obligations. There are no contracts, agreements or understanding between any Issuer and any person granting such person the right to require such Issuer to file a registration statement under the 1933 Act with respect to any securities of such Issuer or to require such Issuer to include such securities with the securities registered pursuant to any Issuer registration statement, except as contemplated in the Registration Rights Agreement and the Investors' Agreement dated as of May 22, 1998 among Parent and the investors and stockholders party thereto. SECTION 3.13. No Violation of Regulation G, T, U or X. Neither Issuer nor any agent thereof acting on the behalf of them has taken, and none of them will take, any action that may cause the Transaction Agreements or the issuance or sale of the Securities to violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. SECTION 3.14. No Ratings Decline. No "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act (i) has imposed (or has informed any Issuer that it is considering imposing) any condition (financial or otherwise) on such Issuer's retaining any rating assigned to such Issuer or any securities of such Issuer or (ii) has indicated to such Issuer that it is considering (A) the downgrading suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (B) any change in the outlook for any rating of such Issuer or any securities of such Issuer. SECTION 3.15. No Material Change. Since the respective dates as of which information is given in the Parent 34 Act Reports other than as set forth in the Parent 34 Act Reports (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there has not occurred any material adverse change or any development involving a prospective material adverse change in the condition, financial or otherwise, or the earnings, business, management or operations of Parent and its subsidiaries, taken as a whole, (ii) there has not been any material adverse change or any development involving a prospective material adverse change in the capital stock or in the long-term debt of Parent or any of its subsidiaries and (iii) neither Parent nor any of its subsidiaries has incurred any material liability or obligation, direct or contingent. SECTION 3.16. No Solicitation. No form of general solicitation or general advertising (as defined in Regulation D under the 1933 Act) was used by any 10 Issuer or any of its representatives (other than the DLJ Buyers, as to whom the Issuers make no representation) in connection with the offer and sale of the Securities contemplated here, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. No securities of the same class as the Notes or the Warrants have been issued and sold by any Issuer within the six-month period immediately prior to the date hereof. SECTION 3.17. Labor Matters. There is no (i) material unfair labor practice complaint, grievance or arbitration proceeding pending or threatened against either Issuer before the National Labor Relations Board or any state or local labor relations board or (ii) strike, labor dispute, slowdown or stoppage pending or threatened against either Issuer, except for such actions specified in clause (i) or (ii) above, which, singly or in the aggregate, would not have a Material Adverse Effect. To the best of the Issuers' knowledge, no collective bargaining organizing activities are taking place with respect to either Issuer, which, singly or in the aggregate, would have a Material Adverse Effect. SECTION 3.18. Accounting Controls. Each Issuer maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. SECTION 3.19. Intellectual Property. Except as otherwise set forth in the Parent 34 Act Reports, Parent and its subsidiaries own or possess, or can acquire on reasonable terms, all patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names ("intellectual property") currently employed by them in connection with the business now operated by them, except where the failure to own or possess or otherwise be able to acquire such intellectual property would not, singly or in the aggregate, have a Material Adverse Effect; and, to the best of the Issuers' knowledge, neither Parent nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of such intellectual property which, singly or in the aggregate, 11 if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect. SECTION 3.20. Indenture. Prior to the effectiveness of any registration statement relating to the Notes, the Indenture is not required to be qualified under the TIA. SECTION 3.21. No Registration. No registration under the 1933 Act of the Securities is required for the sale of the Securities to the Buyers as contemplated hereby or for exempt resales assuming the accuracy of the Buyers' representations and warranties and agreements set forth in Article 4. SECTION 3.22. Certificates. Each certificate signed by an officer of any Issuer and delivered to the Buyers or counsel for the Buyers shall be deemed to be a representation and warranty by such Issuer to the Buyers as to the matters covered thereby. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE BUYERS Each Buyer, severally as to itself and not jointly, represents and warrants to Parent and the Company as of the Closing Date that: SECTION 4.01. Corporate/Partnership Existence and Power. Such Buyer is a partnership duly organized or a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of organization. SECTION 4.02. Corporate/Partnership Authorization. The execution, delivery and performance by such Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby are within the powers (corporate, partnership or otherwise) of such Buyer and have been duly authorized by all necessary action on the part of such Buyer. This Agreement constitutes (and, when executed and delivered, each other Transaction Document to which such Buyer is a party will constitute) a valid and binding agreement of such Buyer. SECTION 4.03. Governmental Authorization. The execution, delivery and performance by such Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby require no action by or in respect of, or filing with, any governmental body, agency or official 12 (other than any filing pursuant to the HSR Act that may be required by a holder of the Warrants in connection with the exercise of the Warrants). SECTION 4.04. Noncontravention. The execution, delivery and performance by such Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby do not and will not (i) violate the partnership agreement or certificate of incorporation or bylaws, as the case may be, of such Buyer, (ii) violate any material indenture, agreement or mortgage to which such Buyer is a party or by which such Buyer is bound, or (iii) assuming compliance with the matters referred to in Section 4.03, violate any applicable material law, rule, regulation, judgment, injunction, order or decree or require any material consent of any other Person. SECTION 4.05. Purchase for Investment. Such Buyer acknowledges that the Securities have not been registered under the 1933 Act or any state securities laws and that the purchase and sale of the Securities contemplated hereby is to be effected pursuant to an exemption from the registration requirements imposed by such laws. In this regard, such Buyer is purchasing the Securities to be purchased by it hereunder for its own account and not with a view to, or for sale in connection with, any distribution thereof in violation of the 1933 Act. Such Buyer (either alone or together with its advisors) is an "accredited investor" (as defined in Regulation D under the 1933 Act), has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in such Securities and is capable of bearing the economic risks of such investment. Such Buyer has been given the opportunity to ask questions of, and receive answers from, management of Parent concerning its investment in the Issuers. SECTION 4.06. Litigation. There is no action, suit, investigation or proceeding pending against, or to the knowledge of such Buyer threatened against or affecting, such Buyer before any court or arbitrator or any governmental body, agency or official which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the Transactions. SECTION 4.07. Finders' Fees. There is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of such Buyer who might be entitled to any fee or commission from such Buyer or from Parent or any of its Affiliates upon consummation of the Transactions. 13 ARTICLE 5 COVENANTS OF THE PARTIES Each party hereto agrees that: SECTION 5.01. Best Efforts; Further Assurances. Subject to the terms and conditions of this Agreement, such party will use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws and regulations to consummate the Transactions. Such party agrees to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or desirable in order to consummate or implement expeditiously the Transactions. SECTION 5.02. Certain Filings. The parties hereto shall cooperate with one another (i) in determining whether any action by or in respect of, or filing with, any governmental body, agency, official or authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the Transactions and (ii) in taking such actions or making any such filings, furnishing information required in connection therewith and seeking timely to obtain any such actions, consents, approvals or waivers. SECTION 5.03. Public Announcements. The parties agree to consult with each other before issuing any press release or making any public statement with respect to any Transaction Document or the Transactions and, except as may be required by applicable law or any listing agreement with any national securities exchange, will not issue any such press release or make any such public statement prior to such consultation. ARTICLE 6 CONDITIONS TO CLOSING SECTION 6.01. Conditions to Obligations of each Party. The obligations of each party to consummate the Closing are subject to the satisfaction of the following conditions: 14 (a) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Closing. (b) No proceeding challenging this Agreement or any of the Transactions or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending, where, in the reasonable judgment of the Buyers, on the one hand, or the Issuers, on the other hand, there is a significant possibility of a determination in accordance with the plaintiff's demand. SECTION 6.02. Conditions to Obligation of the Buyers. The obligation of the Buyers to consummate the Closing is subject to the satisfaction of the following further conditions: (a) (i) The Issuers shall have performed in all material respects all of their obligations hereunder required to be performed by them on or prior to the Closing Date and (ii) the representations and warranties of the Issuers contained in this Agreement and in any certificate or other writing delivered by either of them pursuant hereto shall be true in all material respects at and as of the Closing Date (it being understood that where any such representation and warranty already includes a material adverse effect or materiality exception, no further materiality exception is to be permitted by this Section 6.02(a)(ii)). (b) There shall not be threatened, instituted or pending any action or proceeding by any Person before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit or otherwise interfere with the ownership or operation by Parent or any of its Affiliates of all or any material portion of the business or assets of Parent or any Subsidiary, or to compel Parent or any of its Affiliates to dispose of all or any material portion of such businesses or assets, (ii) seeking to impose or confirm limitations on the ability of any Buyer or any of its Affiliates effectively to exercise full rights of ownership of its Securities or (iii) seeking to require divestiture by any Buyer or any of its Affiliates of any of its Securities. (c) There shall not be any action taken, or any statute, rule, regulation, injunction, order or decree proposed (where, in the reasonable judgment of the Buyers, there is a significant possibility that such proposal will be enacted), enacted, enforced, promulgated, issued or deemed applicable to the purchase of their Securities, by any court, government or 15 governmental authority or agency, domestic or foreign, that, in the reasonable judgment of any Buyer has a significant possibility of, directly or indirectly, resulting in any of the consequences referred to in clauses 6.02(b)(i) through 6.02(b)(iii) above. (d) Each of the Transaction Documents (other than the Indenture) shall have been executed and delivered by the parties thereto other than the Buyers, the conditions to closing of each of the parties to the Transaction Documents (other than the Buyers) as set forth in such Transaction Documents shall have been satisfied or waived and, assuming due execution and delivery by the Buyers, each such Transaction Document shall be in full force and effect. (e) The costs and expenses of the Buyers referred to in Section 8.03, shall have been paid by the Issuers. (f) The Buyers shall have received an opinion or opinions of Weil, Gotshal & Manges (or other counsel reasonably satisfactory to the Buyers), counsel to the Issuers, dated the Closing Date, in form and substance reasonably satisfactory to the Buyers. In rendering such opinion, such counsel may rely upon certificates of public officers and, as to matters of fact, upon certificates of officers of the Issuers, copies of which certificates shall be contemporaneously delivered to the Buyers. (g) The Buyers shall have received all documents they may reasonably request relating to the existence of each Issuer and the authority of each Issuer for each of the Transaction Documents, all in form and substance reasonably satisfactory to the Buyers. SECTION 6.03. Conditions to Obligation of the Issuers. The obligation of the Issuers to consummate the Closing is subject to the satisfaction of the following further conditions: (a) (i) The Buyers shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing Date and (ii) the representations and warranties of the Buyers contained in this Agreement and in any certificate or other writing delivered by the Buyers pursuant hereto shall be true in all material respects at and as of the Closing Date (it being understood that where any such representation and warranty already includes a material adverse effect or materiality exception, no further materiality exception is to be permitted by this Section 6.03(a)(ii)). 16 (b) There shall not be threatened, instituted or pending any action or proceeding by any Person before any court or governmental authority or agency, domestic or foreign, seeking to restrain or prohibit the ownership or operation by Parent or its Affiliates of all or any material portion of the business or assets of Parent or any Subsidiary, or to compel Parent or its Affiliates to dispose of all or any material portion of such businesses or assets. (c) There shall not be any action taken, or any statute, rule, regulation, injunction, order or decree proposed (where, in the reasonable judgment of the Issuers, there is a significant possibility that such proposal will be enacted), enacted, enforced, promulgated, issued or deemed applicable to the sale of Securities, by any court, government or governmental authority or agency, domestic or foreign that, in the reasonable judgment of the Issuers has a significant possibility of, directly or indirectly, resulting in any of the consequences referred to in Section 6.03(b) above. (d) Each of the Transaction Documents (other than the Indenture) shall have been executed and delivered by the parties thereto other than the Issuers and, assuming due execution and delivery by the Issuers, each such Transaction Document shall be in full force and effect. (e) The Issuers shall have received all documents they may reasonably request relating to the existence of the Buyers and the authority of such Persons for each of the Transaction Documents, all in form and substance reasonably satisfactory to the Issuers. ARTICLE 7 SURVIVAL; INDEMNIFICATION SECTION 7.01. Survival. The covenants, agreements, representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing until eighteen months after the Closing Date; provided that the representations and warranties contained in Sections 3.04, 3.05, 3.08, and the covenants and agreements set forth in Articles 7 and 8 shall survive indefinitely. Notwithstanding the preceding sentence, any covenant, agreement, representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof giving rise to 17 such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time. SECTION 7.02. Indemnification. (a) Parent and the Company, without duplication, hereby jointly and severally indemnify each Buyer against and agree to hold such Buyer harmless from any and all damage, loss, liability and expense (including, without limitation, reasonable expenses of investigation and reasonable attorneys' fees and expenses in connection with any action, suit or proceeding) ("Damages") incurred or suffered by such Buyer arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by Parent or the Company pursuant to this Agreement. (b) Each Buyer, severally but not jointly, hereby indemnifies Parent and the Company, without duplication, against and agrees to hold each of them harmless from any and all Damages incurred or suffered by them arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by such Buyer pursuant to this Agreement. (c) Any amount paid by Parent, any Subsidiary or the Buyers under Article 7 will be treated as an adjustment to the Purchase Price unless a Final Determination causes any such amount not to constitute an adjustment to the Purchase Price for Federal Tax purposes. In the event of such a Final Determination, the Buyers, Parent or any Subsidiary, as the case may be, shall pay an amount that reflects the hypothetical Tax consequences of the receipt or accrual of such payment, using the maximum statutory rate (or rates, in the case of an item that affects more than one Tax) applicable to the recipient of such payment for the relevant year, reflecting for example, the effect of deductions available for interest paid or accrued and for Taxes such as state and local income Taxes. SECTION 7.03. Procedures. The party seeking indemnification under Section 7.02 (the "Indemnified Party") agrees to give prompt notice to the party against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought under such Section. The Indemnifying Party may at the request of the Indemnified Party participate in and control the defense of any such suit, action or proceeding at its own expense. The Indemnifying Party shall not be liable under Section 7.02 for any settlement effected without its consent of any claim, litigation or proceeding in respect of which indemnity may be sought hereunder. 18 ARTICLE 8 MISCELLANEOUS SECTION 8.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given, if to the DLJ Buyers, to: c/o DLJ Merchant Banking Partners II, L.P. 277 Park Avenue New York, NY 10172 Attention: William F. Dawson, Jr. Fax: (212) 892-7272 with a copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Attention: Richard D. Truesdell, Jr. Fax: (212) 450-4800 if to the Issuers, to: Thermadyne Holdings Corporation 101 South Hanley Road St. Louis, Missouri 63105 Attention: Jim Tate or Stephanie Josephson Fax: (314) 746-2374 (314) 746-2327 with a copy to: R. Scott Cohen, Esq. Weil, Gotshal & Manges LLP 100 Crescent Court Suite 1300 Dallas, TX 75201-6950 Fax: (214) 746-7777 19 All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. SECTION 8.02. Amendments and Waivers. (a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective, provided that the DLJ Buyers agree that DLJ Merchant Banking Partners II, L.P. may agree to an amendment or waiver on behalf of, and as agent for, all DLJ Buyers. (b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. SECTION 8.03. Expenses. All costs and expenses incurred in connection with the Transaction Documents shall be paid by the party incurring such cost or expense; provided that (i) any costs and expenses (including fees and expenses of counsel) of each Buyer shall be reimbursed by the Issuers at the Closing and (ii) all transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with transactions contemplated by this Agreement shall be paid by Parent when due, and Parent will, at its own expense, file all necessary Tax returns and other documentation with respect to all such Taxes and fees, and, if required by applicable law, the Buyers will join in the execution of any such Tax returns and other documentation. SECTION 8.04. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto. SECTION 8.05. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law rules of such state. 20 SECTION 8.06. Jurisdiction. Except as otherwise expressly provided in this Agreement, the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be brought in the United States District Court for the Southern District of New York or any other New York State court sitting in New York City, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 8.01 shall be deemed effective service of process on such party. SECTION 8.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. SECTION 8.08. Counterparts; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. No provision of this Agreement is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder. SECTION 8.09. Appointment of Agent. Each of the DLJ Buyers hereby irrevocably constitutes and appoints DLJ Merchant Banking Partners II, L.P. as its agent and true and lawful attorney in fact with full power and discretion, in the name of and for and on behalf of each of the DLJ Buyers, in connection with all matters arising from, contemplated by or relating to the Transaction Documents. The powers of DLJ Merchant Banking Partners II, L.P. include, without limitation, the power to represent each of the DLJ Buyers with respect to all aspects of the Transaction Documents, which power shall include, without limitation, the power to (i) waive any conditions of the Transaction Documents, (ii) amend the Transaction Documents in any respect, (iii) receive notices or other communications, (iv) deliver any notices, certificates or other documents required and (v) take all such other action and to do all such other things as DLJ Merchant Banking Partners II, L.P. deems necessary or advisable with respect to the Transaction Documents. The Issuers shall have the right to rely upon the acts 21 taken or omitted to be taken by DLJ Merchant Banking Partners II, L.P. on behalf of the DLJ Buyers, and shall have no duty to inquire as to the acts and omissions of DLJ Merchant Banking Partners II, L.P. SECTION 8.10. Entire Agreement. The Transaction Documents constitute the entire agreement between the parties with respect to the subject matter of the Transaction Documents and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of the Transaction Documents. SECTION 8.11. Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. SECTION 8.12. Enforcement of Voting Rights. In the event that after December 15, 2004 the Company does not pay interest in cash on four consecutive Interest Payment Dates (as defined in the Indenture) or on six Interest Payment Dates, each of the DLJ Buyers agrees to cause, to the extent such DLJ Buyers and their affiliates shall have the power to cause, two people selected by the Holders (as defined in the Indenture) of a majority of the Accreted Value (as defined in the Indenture) of the Notes, voting as a single class, to be elected to the Board of Directors of Parent. Further, each of the DLJ Buyers agrees to cause, to the extent such DLJ Buyers shall have the power to cause, such directors to serve on the Board of Directors of Parent until such time as the Company pays interest in cash on four consecutive Interest Payment Dates following their election. 22 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. THERMADYNE HOLDINGS CORPORATION. By: ------------------------------------ Name: Title: THERMADYNE MFG. LLC By: ------------------------------------ Name: Title: DLJ MERCHANT BANKING PARTNERS II, L.P. By: ------------------------------------ Name: Title: DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: ------------------------------------ Name: Title: DLJ OFFSHORE PARTNERS II, C.V. By: ------------------------------------ Name: Title: 23 DLJ DIVERSIFIED PARTNERS, L.P. By: ------------------------------------ Name: Title: DLJ DIVERSIFIED PARTNERS-A, L.P. By: ------------------------------------ Name: Title: DLJM FUNDING II, INC. By: ------------------------------------ Name: Title: DLJ MILLENNIUM PARTNERS, L.P. By: ------------------------------------ Name: Title: DLJ MILLENNIUM PARTNERS-A, L.P. By: ------------------------------------ Name: Title: DLJ EAB PARTNERS, L.P. By: ------------------------------------ Name: Title: 24 DLJ ESC II L.P. By: ------------------------------------ Name: Title: DLJ FIRST ESC, L.P. By: ------------------------------------ Name: Title: 25 Schedule 2.01 Notes to be Purchased from the Company and Warrants to be Purchased from Parent Buyers Securities Purchase Price - ---------------------------------------------------------------------------------------- DLJ Merchant Banking (1) $15,748,000 Initial Accreted $15,748,000 Partners II, L.P. Value of Notes (2) Warrants to purchase 275,255 shares of Common Stock DLJ Merchant Banking (1) $627,000 Initial Accreted $627,000 Partners II-A, L.P. Value of Notes (2) Warrants to purchase 10,962 shares of Common Stock DLJ Offshore Partners (1) $774,000 Initial Accreted $774,000 II, C.V. Value of Notes (2) Warrants to purchase 13,536 shares of Common Stock DLJ Diversified (1) $921,000 Initial Accreted $921,000 Partners, L.P. Value of Notes (2) Warrants to purchase 16,093 shares of Common Stock DLJ Diversified (1) $342,000 Initial Accreted $342,000 Partners-A, L.P. Value of Notes (2) Warrants to purchase 5,976 shares of Common Stock DLJMB Funding II, Inc. (1) $3,212,000 Initial Accreted $3,212,000 Value of Notes (2) Warrants to purchase 56,152 shares of Common Stock DLJ Millennium (1) $255,000 Initial Accreted $255,000 Partners, L.P. Value of Notes (2) Warrants to purchase 4,451 shares of Common Stock Buyers Securities Purchase Price - ---------------------------------------------------------------------------------------- DLJ Millennium (1) $50,000 Initial Accreted Value $50,000 Partners-A, L.P. amount at maturity of Notes (2) Warrants to purchase 868 shares of Common Stock DLJ EAB Partners, L.P. (1) $71,000 Initial Accreted Value $71,000 amount at maturity of Notes (2) Warrants to purchase 1,236 shares of Common Stock DLJ ESC II L.P. (1) $2,970,000 Initial Accreted $2,970,000 Value of Notes (2) Warrants to purchase 51,906 shares of Common Stock DLJ First ESC, L.P. (1) $30,000 Initial Accreted Value $30,000 of Notes (2) Warrants to purchase 530 shares of Common Stock ======================================================================================= TOTALS 1) $25,000,000 Initial Accreted $25,000,000 Value of Notes (2) Warrants to purchase 436,965 shares of Common Stock - ----------------------------------------------------------------------------------------
2 Schedule 3.05 Name Jurisdiction of Organization - ---- ---------------------------- Arcair Stoody Europe S.A. Belgium BBM Srl* Italy C&G Systems Holding, Inc. Delaware C&G Systems, Inc. Ililnois Canadian Cylinder Company Canada Comet Property Holdings, Inc. Philippines Comweld Group Pty. Ltd Australia Comweld Malaysia SDN BHD Malaysia Comweld Philippines Inc. Philippines Coyne Natural Gas Systems, Inc. Missouri Duxtech Pty. Ltd. Australia Genset SpA Italy Marison Cylinder Company Delaware MECO Holding Company Delaware Metalservice SA Chile Modern Engineering Company, Inc. Missouri Ocim Srl* Italy Palco Trading Company* Dubai Philippine Welding Equipment Inc.* Philippines PT Thermadyne Utama Indonesia Indonesia PT Comweld Indonesia Indonesia Quetack Pty. Ltd Australia Quetala Pty. Ltd. Australia Quetala Unit Trust Australia Soltec SA Chile Stoody Company Delaware TAG Realty, Inc. Texas Tecmo Srl Italy Tec. Mo. Cut Srl* Italy Tec. Mo. Control Srl* Italy THC Italia Srl Italy Thermadyne Asia/Pacific PTE Ltd. Singapore Thermadyne Asia SDN BHD Malaysia 3 Name Jurisdiction of Organization - ---- ---------------------------- Thermadyne Australia Pty. Ltd. Australia Thermadyne Brazil Holdings, Ltd. Cayman Islands Thermadyne Capital Corp. Delaware Thermadyne Chile Holdings, Ltd. Cayman Islands Thermadyne Cylinder Company California Thermadyne de Brasil S.C. Ltda Brazil Thermadyne de Mexico S.A. de C.V. Mexico Thermadyne Foreign Sales Corporation Barbados Thermadyne Hong Kong Limited Hong Kong Thermadyne Industries, Inc. Delaware Thermadyne Industries Limited United Kingdom Thermadyne International Corp. Delaware Thermadyne Italia Srl Italy Thermadyne Japan, K.K. Japan Thermadyne Korea, Limited Korea Thermadyne Receivables, Inc. Delaware Thermadyne South America Holdings, Ltd. Cayman Islands Thermadyne Thailand Co. Ltd.* Thailand Thermadyne Victor Ltda. Brazil Thermadyne Welding Products Canada, Ltd. Canada Thermal Arc, Inc. Delaware Thermal Arc Philippines, Inc. Philippines Thermal Dynamics Corp. Delaware Tweco Products, Inc. Delaware Victor Coyne International, Inc. Delaware Victor Equipment Company Delaware Victor Gas Systems, Inc. Delaware Wichita Warehouse Corp. Kansas 100% of the stock of all domestic subsidiaries are pledged pursuant to the Credit Agreement. 65% of the stock of all foreign subsidiaries are pledged pursuant to the Credit Agreement. *These subsidiaries are not 100% owned. 4 EXHIBIT A THIS NOTE IS SUBJECT TO, AND IS TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF A SUBSCRIPTION AGREEMENT DATED AS OF DECEMBER 22, 1999. COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICE OF THE COMPANY AT 101 SOUTH HANLEY ROAD, ST. LOUIS, MISSOURI 63105. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE U.S. OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE U.S. TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE COMPANY A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE COMPANY), AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE ACCRETED VALUE OF NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE U.S. IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904, AS APPLICABLE, UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (G) PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH SECTION 3.14(J) OF THE INDENTURE AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE COMPANY. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A NON-U.S. PERSON THAT, IN EITHER CASE, IS NOT A QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S." AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE COMPANY TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS. THERMADYNE MFG. LLC. Junior Subordinated Note due 2009 Initial Accreted Value No. ___ $__________ THERMADYNE MFG. LLC, a Delaware limited liability company (the "Company"), which term includes any successor Persons under the Indenture hereinafter referred to), for value received, promises to pay to __________, or its registered assigns, the Accreted Value (as defined below) of this Note, on December 15, 2009. 2 "Accreted Value" means with respect to this Note, as of any date of determination, the sum of: (a) the Accreted Value of such Note on the immediately preceding Interest Payment Date (in the event such date of determination falls before the first Interest Payment Date, the "Initial Accreted Value" specified on the face hereof) plus (b) an amount determined by multiplying (i) the amount referred to in clause (a) by (ii) 15% (provided that the accretion rate applicable to any period or portion of a period during which no interest accrues that occurs after December 15, 2004 shall be 16%) by (iii) the number of days in the period from and including the preceding Interest Payment Date to such date of determination divided by 360, less (c) any interest that accrues with respect to such period in accordance with the terms of the Note. Interest Rate: Prior to December 15, 2004, unless a Cash Payment Notice (as defined below) is properly delivered by the Company, no interest shall accrue or be payable with respect to the Notes. If the Company elects to pay interest on any Interest Payment Date prior to December 15, 2004, the Company shall give written notice (each such notice a "Cash Payment Notice") of such election to Holders five business days prior to the immediately preceding Interest Payment Date. Commencing on such immediately preceding Interest Payment Date until such Interest Payment Date for which a Cash Payment Notice has been properly delivered, interest will accrue and be payable at a rate of 15% per annum to Holders of record of the Notes at the close of business on the Regular Record Date immediately preceding the Interest Payment Date for which such Cash Payment Notice has been properly delivered, whether or not a Business Day. Failure to pay interest after proper delivery of a Cash Payment Notice for any reason shall not constitute a breach of this Note or the Indenture and the Accreted Value shall be determined as if such Cash Payment Notice had not been delivered. On or after December 15, 2004 interest will accrue and be payable at a rate of 15% per annum on each Interest Payment Date to Holders of record of the Notes at the close of business on the immediately preceding Regular Record Date; provided, that if and for so long as payment of interest on the Notes is prohibited under the terms of the Credit Agreement (as defined in the Indenture) interest shall not accrue or be payable with respect to the Notes. Interest Payment Dates: March 15, June 15, September 15 and December 15 of each year. 3 Regular Record Dates: March 1, June 1, September 1 and December 1 of each year. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. 4 IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. Date: December 22, 1999 THERMADYNE MFG. LLC, as Issuer By: --------------------------- Name: Title: 5 THERMADYNE MFG. LLC Junior Subordinated Note due 2009 This Note is one of a duly authorized issue of Notes of the Company consisting of other Junior Subordinated Notes due 2009 of the Company issued on December 22, 1999 and any replacement Notes issued in exchange for, or in lieu of, the foregoing in accordance with the Indenture. The Notes are limited in aggregate principal at maturity to the Accreted Value attributable to $25,000,000. All of such Notes shall be treated as a single issue and vote together as one class for all purposes of this Note and the Indenture. 1. Incorporation by Reference of Provisions of the Indenture. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture (as amended in accordance herewith, the "Indenture") attached hereto as Exhibit A. At all times during which an indenture is not required to be qualified under the TIA with respect to the Notes or the Indenture has not otherwise been executed and delivered, to the extent not inconsistent with any other terms of the Notes set forth herein, all of the terms and conditions of the Indenture shall be and are hereby incorporated by this reference in the Notes as if fully set forth herein, and shall be binding upon the Company and, by accepting a Note, each Holder, and inure to the benefit of the Holders of the Notes, except that, to the extent that the Indenture requires (i) any notices, certificates or other items to be delivered by the Company to the Trustee or any Paying Agent, such notices, certificates or other items shall be delivered instead to each Holder, (ii) any notices, certificates or other items to be delivered to the Trustee shall be delivered instead to the Company (and shall be delivered by the Company to each Holder), (iii) any notices, certificates or other items to be delivered by the Trustee to the Holders, such notices, certificates or other items shall be delivered instead by the Company to the Holders, (iv) any payments to be made by the Company to the Trustee or Paying Agent for payment to Holders, such payments shall instead be paid directly by the Company to the applicable Holder in the same manner as set forth in Section 3 below, (v) approval of the form of Notes or notations, legends or endorsements thereon by the Trustee, the Holders of a majority in outstanding principal amount of the Notes shall instead approve such form and notations, legends or endorsements (the form of Notes delivered to the initial Holders on the date of original issuance of the Notes and notations, legends and endorsements thereon being deemed to have been so approved) , (vi) any Note to be authenticated by the Trustee or an Authenticating Agent, the Notes shall instead be authenticated by the Company (the execution and delivery of any Note by manual signature of the Company to be deemed to constitute such 6 authentication for all purposes), (vii) that a Person other than the Company and any Affiliate thereof act as Paying Agent for presentation or surrender of Notes for payment, the Company or any Affiliate thereof may nonetheless so act, (viii) the Company to initially appoint the Trustee as Registrar or Paying Agent (to the extent of acting as agent for receiving surrender or presentations of, but not deposits of payments on, Notes) and agents for service of demands and notices in connection with the Notes, the Company instead hereby appoints its office at 101 South Hanley Road, Suite 300, St. Louis, MO 63105 for such purpose (with Section 4.02 of the Indenture not to apply thereto), (ix) Notes to be canceled by the Trustee, such Notes shall instead be canceled by the Company, (x) the Opinions of Counsel to be delivered to the Trustee pursuant to the Indenture shall instead be delivered to the Holders, (xi) any Notes to be surrendered or forwarded to the Trustee or any Paying Agent or Registrar, such Notes shall be surrendered or forwarded instead to the Company, (xii) any notices, certificates or other items to be delivered by the Holders to the Registrar or Paying Agent, such notices, certificates or other items shall be delivered instead to the Company and (xiii) Notes to be redeemed upon a partial redemption to be selected by the Trustee, such Notes shall be selected instead by the Company. 2. Accreted Value and Interest; Subordination. The Company agrees to pay the Accreted Value of this Note on December 15, 2009. The Company agrees to pay interest on the Accreted Value of this Note at the rate and in the manner specified below. "Accreted Value" means with respect to this Note, as of any date of determination, the sum of: (a) the Accreted Value of such Note on the immediately preceding Interest Payment Date (in the event such date of determination falls before the first Interest Payment Date, the "Initial Accreted Value" specified on the face hereof) plus (b) an amount determined by multiplying (i) the amount referred to in clause (a) by (ii) 15% (provided that the accretion rate applicable to any period or portion of a period during which no interest accrues on the Notes that occurs after December 15, 2004 shall be 16%) by (iii) the number of days in the period from and including the preceding Interest Payment Date to such date of determination divided by 360, less (c) any interest that accrues with respect to such period in accordance with the terms of the Note. Interest Rate: Prior to December 15, 2004, unless a Cash Payment Notice (as defined below) is properly delivered by the Company, no interest shall accrue or be payable with respect to the Notes. If the Company elects to pay interest 7 on any Interest Payment Date prior to December 15, 2004, the Company shall give written notice (each such notice a "Cash Payment Notice") of such election to Holders five business days prior to the immediately preceding Interest Payment Date. Commencing on such immediately preceding Interest Payment Date until such Interest Payment Date for which a Cash Payment Notice has been properly delivered, interest will accrue and be payable at a rate of 15% per annum to Holders of record of the Notes at the close of business on the Regular Record Date immediately preceding the Interest Payment Date for which such Cash Payment Notice has been properly delivered, whether or not a Business Day. Failure to pay interest after proper delivery of a Cash Payment Notice for any reason shall not constitute a branch of this Note or the Indenture and the Accreted Value shall be determined as if such Cash Payment Notice had not been delivered. On or after December 15, 2004 interest will accrue and be payable at a rate of 15% per annum on each Interest Payment Date to Holders of record of the Notes at the close of business on the immediately preceding Regular Record Date; provided, that if and for so long as payment of interest on the Notes is prohibited under the terms of the Credit Agreement (as defined in the Indenture) interest shall not accrue or be payable with respect to the Notes. Interest on this Note will accrue as and to the extent set forth above; provided that, after December 15, 2004 if there is no failure or delay in the payment of interest and if this Note is authenticated between a Regular Record Date and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue payments of interest and Accreted Value, to the extent lawful, at a rate per annum equal to 1% per annum in excess of the rate of interest applicable to the Notes. The indebtedness evidenced by the Notes is, to the extent and in the manner provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness and all Senior Subordinated Indebtedness, and this Note is issued subject to such provisions. Each Holder of this Note, by accepting the same, agrees to and shall be bound by such provisions and agrees to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture. 3. Method of Payment. The Company will pay interest on the Notes on each Interest Payment Date for which interest is to be paid to the Persons who are 8 Holders (as reflected in the Register at the close of business on the Regular Record Date immediately preceding the Interest Payment Date), in each case, even if the Note is canceled on registration of transfer or registration of exchange after such Regular Record Date; provided that, with respect to the payment of Accreted Value at maturity, the Company will make payment to the Holder that surrenders this Note to any Paying Agent (which is initially the Company) on or after December 15, 2009. The Company will make all payments hereunder in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company will make all payments hereunder by wire transfer of immediately available funds to the accounts specified by the Holder hereof or, if no such account is specified, by mailing a check to the Holder's registered address. If a payment date is a date other than a Business Day, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period. 4. Paying Agent and Registrar. Initially, the Company will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar upon written notice to the Holders. The Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or co-registrar. 5. Indenture; Limitations. In the event an indenture is required to be qualified under the Trust Indenture Act of 1939 (U.S. Code SS 77aaa-77bbbb), as amended from time to time (the "TIA"), with respect to the Notes, or at any time upon the request of Holders of in excess of 25% in aggregate principal amount of the outstanding Notes, the Company shall, and at any other time the Company, in its sole discretion, may, appoint a trustee (the "Trustee") who satisfies the eligibility requirements set forth in Section 7.10 of the Indenture and, in any such event, the Company shall take whatever actions are necessary to cause an Indenture substantially in the form of Exhibit A attached hereto to be executed and delivered by the Company and the Trustee and to be qualified under the TIA. In such event, (i) this Note shall be deemed to be one of an issue of Notes of the Company issued under the Indenture; (ii) the terms of the Notes shall be deemed to include those stated in the Indenture and those made part of the Indenture by reference to the TIA, as amended from time to time; and (iii) the Notes shall be subject to all such terms. Holders of Notes are referred to the Indenture and the TIA for a statement of all such terms. In such event, the Company may require holders of the Notes, and each Holder by his or her acceptance hereof agrees upon the Company's request, to surrender to the Trustee all Notes in the form hereof in exchange for replacement Notes substantially in the form of Exhibit A to the Indenture. 9 The Notes are unsecured junior subordinated obligations of the Company. 6. Optional Redemption. The Notes may be redeemed at the option of the Company, in whole, at any time and from time to time, on and prior to maturity at the following Redemption Prices (expressed in percentages of the Accreted Value thereof on the relevant Redemption Date), plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date); provided that the Company shall not optionally redeem any Notes except and to the extent permitted by the Credit Agreement, (a) if redeemed prior to December 15, 2004 at a redemption price equal to 115% of the Accreted Value of the Notes; and (b) if redeemed during the 12-month period commencing December 15 of each of the years set forth below: Year Redemption Price 2004............................................. 107.5% 2005............................................. 105.0% 2006............................................. 102.5% 2007 and thereafter.............................. 100% Notice of a redemption will be mailed, first-class postage prepaid, at least 30 days but not more than 60 days before the Redemption Date to each Holder's registered address. On and after the Redemption Date, interest ceases to accrue on, and the Accreted Value shall cease to increase with respect to, Notes or portions of Notes called for redemption, unless the Company defaults in the payment of the Redemption Price. 7. Repurchase upon a Change in Control. Upon the occurrence of a Change in Control, each Holder shall have the right to require that the Company repurchase such Holder's Notes at a purchase price in cash equal to 101% of the Accreted Value thereof on the date of purchase, plus, if applicable, accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date); provided, that the Company shall not be required to 10 repurchase Notes upon a Change of Control if the Company is unable to obtain all necessary consents under the Credit Agreement for such repurchase. 8. Denominations; Transfer; Exchange. The Notes are in fully registered form without coupons, in denominations of $1,000 and any integral multiples of $1,000. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Company may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. 9. Persons Deemed Owners. A Holder may be treated as the owner of a Note for all purposes. 10. Discharge Prior to Redemption or Maturity. If the Company irrevocably deposits, or causes to be deposited, with a trustee who could qualify to serve as Trustee under the Indenture money or U.S. Government Obligations sufficient to pay the then outstanding Accreted Value of and accrued interest, if any, on the Notes (a) to redemption or maturity, the Company will be discharged from the Indenture and the Notes, except in certain circumstances for certain sections thereof, and (b) to redemption or maturity, the Company will be discharged from certain covenants set forth in the Indenture. 11. Amendment; Supplement; Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate Accreted Value of the Notes then Outstanding. Without notice to or the consent of any Holder, the Company may amend the Indenture or the Notes to the extent set forth in the Indenture. 12. Restrictive Covenants. The Indenture contains certain covenants, including, without limitation, covenants with respect to the following matters: (i) redemption of or payments on Junior Securities and Parity Securities; (ii) dividends on Junior Securities; (iii) transactions with Affiliates; and (iv) repurchase of Notes upon a Change in Control. Within 120 days after the end of each fiscal year, the Company must report to the Holders on compliance with such limitations. 13. Voting. The Subscription Agreement dated as of December 22, 1999 relating to the initial purchase of this Note provides that in the event that after December 15, 2004 the Company does not pay interest in cash on four consecutive Interest Payment Dates or on six Interest Payment Dates, the Principal and its affiliates who are signatories to the Subscription Agreement shall cause, to the extent that they shall have the power to so cause, two members 11 selected by the Holders of a majority of the Accreted Value of the Notes, voting as a single class, to be elected to the Board of Directors of Parent. Further, the Principal and such affiliates shall cause, to the extent that they shall have the power to so cause, such directors to serve on the Board of Directors until such time as the Company pays interest in cash on four consecutive Interest Payment Dates following their election. 14. Successor Persons. When a successor person or other entity (other than a Subsidiary of the Company) assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act). 16. Provisions of Indenture. Each Holder, by accepting a Note, agrees, subject to Section 1 above, to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time. 17. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by commercial courier service, by telex, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows: if to the Company: Thermadyne Holdings Corporation 101 South Hanley Road St. Louis, Missouri 63105 Facsimile No: (314) 746-2374 (314) 746-2327 Attn: Jim Tate or Stephanie Josephson with a copy to: R. Scott Cohen, Esq. Weil, Gotshal & Manges LLP 100 Crescent Court Suite 1300 12 Dallas, TX 75201-6950 Fax: (214) 746-7777 Any notice required to be given to a Holder shall be deemed to have been given upon the mailing by first class mail, postage prepaid, of such notices to Holders at their registered address as recorded in the Register and shall be sufficiently given to a Holder if so mailed within the time prescribed. In any case where notice to Holders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. 13 [FORM OF TRANSFER NOTICE] FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. - -------------------------------------------------------------------------------- (Please print or typewrite name and address including zip code of assignee) - -------------------------------------------------------------------------------- the within Note and all rights thereunder, hereby irrevocably constituting and appointing - -------------------------------------------------------------------------------- attorney to transfer such Note on the books of the Company with full power of substitution in the premises. 14 In connection with any transfer of this Note occurring prior to the Resale Restriction Termination Date for this Note, the undersigned confirms that without utilizing any general solicitation or general advertising that: Check One (a) |_| this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder. or (b) |_| this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. If none of the foregoing boxes is checked, the Company shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 3.10 of the Indenture shall have been satisfied. Date: ----------------------- - ---------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. Signature Guarantee: ------------------------- Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Company, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Company in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. 15 TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED. The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. Dated: -------------------------- - -------------------------------- To be executed by an executive officer 16 OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.10 of the Indenture, check the box: |_| If you wish to have a portion of this Note purchased by the Company pursuant to 4.10 of the Indenture, state the amount (in Accreted Value) below: $ ---------------------. Date: --------------------- Your Signature: ------------------------------ (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: ----------------------------- Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. B-1 EXHIBIT C THERMADYNE HOLDINGS CORPORATION Warrant for the Purchase of Shares of Thermadyne Holdings Corporation No. ___ Warrant to Purchase _____ Shares of Common Stock THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. FOR VALUE RECEIVED, THERMADYNE HOLDINGS CORPORATION, a Delaware corporation (the "Company"), hereby certifies that __________, its successor or permitted assigns (the "Holder"), is entitled, subject to the provisions of this Warrant, to purchase from the Company, at the times specified herein, __________ fully paid and non-assessable shares of Common Stock of the Company, par value $ 0.01 per share (the "Warrant Shares"), at a purchase price per share equal to the Exercise Price (as hereinafter defined). The number of Warrant Shares to be received upon the exercise of this Warrant and the price to be paid for a Warrant Share are subject to adjustment from time to time as hereinafter set forth. (a) DEFINITIONS. The following terms, as used herein, have the following meanings: "Affiliate" shall have the meaning given to such term in Rule 12b-2 promulgated under the Securities and Exchange Act of 1934, as amended. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized by law to close. "Common Stock" means the Common Stock, par value $0.01 per share, of the Company or any other security for which this Warrant may be exercised pursuant to paragraph (i) hereof after the occurrence of any of the transactions described in such paragraph. "Exercise Price" means $0.01 per Warrant Share, such Exercise Price to be adjusted from time to time as provided herein. "Expiration Date" means December 15, 2009 at 5:00 p.m. New York City time. "Fair Market Value" means, with respect to one share of Common Stock on any date, the Current Market Price Per Common Share as defined in paragraph (h)(3) hereof. "Person" means an individual, partnership, corporation, limited liability company, association, trust, or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Principal Holders" means, on any date, the Holders of at least 50% of the Warrants. "Subscription Agreement" means the Subscription Agreement dated as of the date hereof between the Company, Thermadyne Mfg. LLC and the investors party thereto. "Warrants" means the Warrants issued pursuant to the Subscription Agreement. (b) EXERCISE OF WARRANT. (1) The Holder is entitled to exercise this Warrant in whole or in part at any time, or from time to time, until the Expiration Date or, if such day is not a Business Day, then on the next succeeding day that shall be a Business Day. To exercise this Warrant, the Holder shall execute and deliver to the Company a Warrant Exercise Notice substantially in the form annexed hereto. No earlier than ten days after delivery of the Warrant Exercise Notice, the Holder shall deliver to the Company this Warrant Certificate duly executed by the Holder, together with payment of 2 the applicable Exercise Price. Upon such delivery and payment, the Holder shall be deemed to be the holder of record of the Warrant Shares subject to such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. Notwithstanding anything herein to the contrary, in lieu of payment in cash of the applicable Exercise Price, the Holder may elect (i) to receive upon exercise of this Warrant, the number of Warrant Shares reduced by a number of shares of Common Stock having the aggregate Fair Market Value equal to the aggregate Exercise Price for the Warrant Shares, (ii) to deliver as payment, in whole or in part of the aggregate Exercise Price, shares of Common Stock having the aggregate Fair Market Value equal to the applicable portion of the aggregate Exercise Price for the Warrant Shares or (iii) to deliver as payment, in whole or in part of the aggregate Exercise Price, such number of Warrants which, if exercised, would result in a number of shares of Common Stock having an aggregate Fair Market Value equal to the applicable portion of the aggregate Exercise Price for the Warrant Shares. Notwithstanding anything to the contrary in this paragraph (b)(1), if the aggregate Fair Market Value of the Common Stock applied or delivered pursuant to (i), (ii) or (iii) above exceeds the aggregate Exercise Price, in no event shall the Holder be entitled to receive any amounts from the Company. (2) The Exercise Price may be paid in cash or by certified or official bank check or bank cashier's check payable to the order of the Company or by any combination of such cash or check. The Company shall pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of the Warrant Shares. (3) If the Holder exercises this Warrant in part, this Warrant Certificate shall be surrendered by the Holder to the Company and a new Warrant Certificate of the same tenor and for the unexercised number of Warrant Shares shall be executed by the Company. The Company shall register the new Warrant Certificate in the name of the Holder or in such name or names of its transferee pursuant to paragraph (f) hereof as may be directed in writing by the Holder and deliver the new Warrant Certificate to the Person or Persons entitled to receive the same. 3 (4) Upon surrender of this Warrant Certificate in conformity with the foregoing provisions, the Company shall transfer to the Holder of this Warrant Certificate appropriate evidence of ownership of the shares of Common Stock or other securities or property (including any money) to which the Holder is entitled, registered or otherwise placed in, or payable to the order of, the name or names of the Holder or such transferee as may be directed in writing by the Holder, and shall deliver such evidence of ownership and any other securities or property (including any money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in paragraph (e) below. (c) RESTRICTIVE LEGEND. Certificates representing shares of Common Stock issued pursuant to this Warrant shall bear a legend substantially in the form of the legend set forth on the first page of this Warrant Certificate to the extent that and for so long as such legend is applicable. (d) RESERVATION OF SHARES. The Company hereby agrees that at all times it shall reserve for issuance and delivery upon exercise of this Warrant such number of its authorized but unissued shares of Common Stock or other securities of the Company from time to time issuable upon exercise of this Warrant as will be sufficient to permit the exercise in full of this Warrant. All such shares shall be duly authorized and, when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of all liens, security interests, charges and other encumbrances or restrictions on sale and free and clear of all preemptive rights. (e) FRACTIONAL SHARES. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant and in lieu of delivery of any such fractional share upon any exercise hereof, the Company shall pay to the Holder an amount in cash equal to such fraction multiplied by the Current Market Price Per Common Share (as defined in paragraph (h)(3)) at the date of such exercise. The Company further agrees that it will not change the par value of the Common Stock from par value $0.01 per share to any higher par value which exceeds the Exercise Price then in effect, and will reduce the par value of the Common Stock upon any event described in paragraph (h) that would, but for this provision, reduce the Exercise Price below the par value of the Common Stock. 4 (f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT. (1) This Warrant and the Warrant Shares are subject to the provisions of a Registration Rights Agreement dated as of December 22, 1999. Each holder of this Warrant Certificate by holding the same, consents and agrees that the registered holder hereof may be treated by the Company and all other persons dealing with this Warrant Certificate as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby. The Holder, by its acceptance of this Warrant, will be subject to the provisions of, and will have the benefits of, the Registration Rights Agreement. (2) Upon surrender of this Warrant to the Company, together with the attached Warrant Assignment Form duly executed, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee or assignees named in such instrument of assignment (and, if the Holder's entire interest is not being assigned, in the name of the Holder) and this Warrant shall promptly be cancelled. (g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Company of evidence satisfactory to it (in the exercise of its reasonable discretion) of the loss, theft, destruction or mutilation of this Warrant Certificate, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant Certificate, if mutilated, the Company shall execute and deliver a new Warrant Certificate of like tenor and date. (h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and the number of shares of Common Stock for which this Warrant may be exercised shall be subject to adjustment from time to time upon the occurrence of certain events as provided in this paragraph (h); provided that notwithstanding anything to the contrary contained herein, the Exercise Price shall not be less than the par value of the Common Stock, as such par value may be reduced from time to time in accordance with paragraph (e). (1) In case the Company shall at any time after the date hereof (i) declare a dividend or make a distribution on Common Stock payable in Common Stock, (ii) subdivide or split the outstanding Common Stock, (iii) combine or reclassify the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of 5 Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the surviving corporation), the Exercise Price in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, split, combination or reclassification shall be proportionately adjusted so that, after giving effect to paragraph (h)(5), the exercise of this Warrant after such time shall entitle the holder to receive the aggregate number of shares of Common Stock or other securities of the Company (or shares of any security into which such shares of Common Stock have been reclassified pursuant to clause (iii) or (iv) above) which, if this Warrant had been exercised immediately prior to such time, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, distribution, subdivision, split, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur. (2) In case the Company shall fix a record date for the making of a distribution to holders of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the surviving corporation) of evidences of indebtedness, cash, assets or other property (other than dividends payable in Common Stock), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price Per Common Share on such record date, less the fair market value (determined as set forth below) of the portion of the evidences of indebtedness, cash, assets or other property so to be distributed which is applicable to one share of Common Stock, and the denominator of which shall be such Current Market Price Per Common Share. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. The fair market value of any such evidences of indebtedness, assets or other property shall be determined by the Board of Directors of the Company; provided that if the Principal Holders shall object to any such determination, the Board of Directors shall retain an independent appraiser reasonably satisfactory to the Principal Holders to determine such fair market value. The Holder shall be notified promptly of any 6 such distribution and furnished with a description and the fair market value thereof, as determined by the Board of Directors. (3) For the purpose of any computation under paragraph (e) or paragraph (h)(2) hereof, on any determination date, the Current Market Price Per Common Share shall be deemed to be the average (weighted by daily trading volume) of the Daily Prices (as defined below) per share of the Common Stock for the 20 consecutive trading days ending three days prior to such date. "Daily Price" means (1) if the shares of Common Stock then are listed and traded on the New York Stock Exchange, Inc. ("NYSE"), the closing price on such day as reported on the NYSE Composite Transactions Tape; (2) if the shares of Common Stock then are not listed and traded on the NYSE, the closing price on such day as reported by the principal national securities exchange on which the shares are listed and traded; (3) if the shares of Common Stock then are not listed and traded on any such securities exchange, the last reported sale price on such day on the National Market of the National Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ"); (4) if the shares of Common Stock then are not listed and traded on any such securities exchange and not traded on the NASDAQ National Market, the average of the highest reported bid and lowest reported asked price on such day as reported by NASDAQ; or (5) if such shares are not listed and traded on any such securities exchange, not traded on the NASDAQ National Market and bid and asked prices are not reported by NASDAQ, then the average of the closing bid and asked prices, as reported by The Wall Street Journal for the over-the-counter market. If on any determination date the shares of Common Stock are not quoted by any such organization, the Current Market Price Per Common Share shall be the fair market value of such shares on such determination date as determined by the Board of Directors, without regard to considerations of the lack of liquidity or applicable regulatory restrictions. If the Principal Holders shall object to any determination by the Board of Directors of the Current Market Price Per Common Share, the Current Market Price Per Common Share shall be the fair market value per share of Common Stock as determined by an independent appraiser retained by the Company and reasonably acceptable to the Principal Holders. The expenses of such independent appraiser shall be paid by (x) the Principal Holders, if the fair market value determined by such appraiser is less than that determined by the Board of Directors, and otherwise 7 (y) by the Company. For purposes of any computation under this paragraph (h), the number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company or its subsidiaries. (4) In the event that, at any time as a result of the provisions of this paragraph (h), the holder of this Warrant upon subsequent exercise shall become entitled to receive any shares of capital stock or other securities of the Company other than Common Stock, the number of such other shares so receivable upon exercise of this Warrant shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained herein. (5) Upon each adjustment of the Exercise Price as a result of the calculations made in paragraphs (h)(1) or (h)(2) hereof, the number of shares for which this Warrant is exercisable immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of shares of Common Stock obtained by (i) multiplying the number of shares covered by this Warrant immediately prior to this adjustment of the number of shares by the Exercise Price in effect immediately prior to such adjustment of the Exercise Price and (ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price. (6) The Company shall notify all Holders of the fixing of a record date for the purpose of payment of a cash dividend to holders of Common Stock as soon as reasonably practicable, but in no event less than 20 days prior to any such record date. (7) Not less than 10 nor more than 30 days prior to the record date or effective date, as the case may be, of any action which requires or might require an adjustment or readjustment pursuant to this paragraph (h), the Company shall forthwith file in the custody of the secretary or any assistant secretary at its principal executive office and with its stock transfer agent or its warrant agent, if any, an officers' certificate showing the adjusted Exercise Price determined as herein provided, setting forth in reasonable detail the facts requiring such adjustment and the manner of computing such adjustment. Each such officers' certificate shall be signed by the chairman, president or chief financial officer of the Company and by the secretary or any 8 assistant secretary of the Company. Each such officers' certificate shall be made available at all reasonable times for inspection by the Holder or any holder of a Warrant executed and delivered pursuant to paragraph (f) and the Company shall, forthwith after each such adjustment, mail a copy, by first-class mail, of such certificate to the Holder. (8) The Holder shall, at its option, be entitled to receive, in lieu of the adjustment pursuant to paragraph (h)(2) otherwise required thereof, on the date of exercise of the Warrants, the evidences of indebtedness, other securities, cash, property or other assets which such Holder would have been entitled to receive if it had exercised its Warrants for shares of Common Stock immediately prior to the record date with respect to such distribution. The Holder may exercise its option under this paragraph (h)(8) by delivering to the Company a written notice of such exercise within seven days of its receipt of the certificate of adjustment required pursuant to paragraph (h)(7) to be delivered by the Company in connection with such distribution. (i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any consolidation of the Company with, or merger of the Company into, any other Person, any merger of another Person into the Company (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) or any sale or transfer of all or substantially all of the assets of the Company or of the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, the Holder shall have the right thereafter to exercise this Warrant for the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock for which this Warrant may have been exercised immediately prior to such consolidation, merger, sale or transfer, assuming (i) such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be ("constituent Person"), or an Affiliate of a constituent Person and (ii) in the case of a consolidation, merger, sale or transfer which includes an election as to the consideration to be received by the holders, such holder of Common Stock failed to exercise its rights of election, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer is not the same for each share of Common Stock held immediately prior to such consolidation, merger, sale or transfer by other than a 9 constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this paragraph (i) the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Adjustments for events subsequent to the effective date of such a consolidation, merger and sale of assets shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. In any such event, effective provisions shall be made in the certificate or articles of incorporation of the resulting or surviving corporation, in any contract of sale, conveyance, lease or transfer, or otherwise so that the provisions set forth herein for the protection of the rights of the Holder shall thereafter continue to be applicable; and any such resulting or surviving corporation shall expressly assume the obligation to deliver, upon exercise, such shares of stock, other securities, cash and property. The provisions of this paragraph (i) shall similarly apply to successive consolidations, mergers, sales, leases or transfers. (j) NOTICES. Any notice, demand or delivery authorized by this Warrant Certificate shall be in writing and shall be given to the Holder or the Company as the case may be, at its address (or telecopier number) set forth below, or such other address (or telecopier number) as shall have been furnished to the party giving or making such notice, demand or delivery: If to the Company: Thermadyne Holdings Corporation 101 South Hanley Road St. Louis, Missouri 63105 Fax: (314) 746-2374 (314) 746-2327 Attention: Jim Tate or Stephanie Josephson If to the Holder: c/o DLJ Merchant Banking Partners II, L.P. 277 Park Avenue New York, NY 10172 Telecopy: (212) 892-7272 Attention: William F. Dawson, Jr. Each such notice, demand or delivery shall be effective (i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified herein and the intended recipient confirms the receipt of such telecopy or (ii) if given by any other means, when received at the address specified herein. 10 (k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the Holder shall not, by virtue hereof, be entitled to any rights of a shareholder of the Company, including, without limitation, the right to vote, to receive dividends or other distributions or to receive any notice of meetings of shareholders or any notice of any proceedings of the Company except as may be specifically provided for herein. (l) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS. (m) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Principal Holders and the Company, or in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. 11 IN WITNESS WHEREOF, the Company has duly caused this Warrant Certificate to be signed by its duly authorized officer and to be dated as of December 22, 1999. THERMADYNE HOLDINGS CORPORATION By: ------------------------------------- Name: Title: Acknowledged and Agreed: [HOLDER] By: ------------------------------------ Name: Title: WARRANT EXERCISE NOTICE To: Thermadyne Holding Corporation The undersigned hereby notifies you of its intention to exercise the Warrant to purchase shares of Common Stock, par value $.01 per share, of Thermadyne Holdings Corporation. The undersigned intends to exercise the Warrant to purchase ___________ shares (the "Shares") at $______ per Share (the Exercise Price currently in effect pursuant to the Warrant). The undersigned intends to pay the aggregate Exercise Price for the Shares by __________ [specify any method permitted by paragraph (b) of the Warrant]. Date: ------------- --------------------------------------- (Signature of Owner) --------------------------------------- (Street Address) --------------------------------------- (City) (State) (Zip Code) WARRANT ASSIGNMENT FORM Dated ___________ ___, _____ FOR VALUE RECEIVED, _______________________ hereby sells, assigns and transfers unto_____________________________(the "Assignee"), (please type or print in block letters) ________________________________________________________________________________ (insert address) its right to purchase up to ______ shares of Common Stock represented by this Warrant and does hereby irrevocably constitute and appoint _______________________ Attorney, to transfer the same on the books of the Company, with full power of substitution in the premises. Signature: ------------------------------ EX-4 3 EXHIBIT 4 REGISTRATION RIGHTS AGREEMENT Dated as of December 22, 1999 by and among THERMADYNE HOLDINGS CORPORATION, THERMADYNE MFG. LLC, DLJ MERCHANT BANKING PARTNERS II, L.P., DLJ MERCHANT BANKING PARTNERS II-A, L.P., DLJ OFFSHORE PARTNERS II, C.V., DLJ DIVERSIFIED PARTNERS, L.P., DLJ DIVERSIFIED PARTNERS-A, L.P., DLJMB FUNDING II, INC., DLJ MILLENNIUM PARTNERS, L.P., DLJ MILLENNIUM PARTNERS-A, L.P., DLJ EAB PARTNERS, L.P., DLJ ESC II L.P. and DLJ FIRST ESC, L.P. relating to the registration of Junior Subordinated Notes due 2009 of Thermadyne Mfg. LLC and Warrants for the Purchase of Shares of Common Stock of Thermadyne Holdings Corporation This Registration Rights Agreement (this "Agreement") is made and entered into as of December 22, 1999, by and among Thermadyne Mfg. LLC, a Delaware limited liability company (the "Company"), Thermadyne Holdings Corporation, a Delaware corporation ("Parent"), DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJMB Funding II, Inc., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ EAB Partners, L.P., DLJ ESC II L.P. and DLJ First ESC, L.P. (each a "DLJ Buyer" and, collectively, the "DLJ Buyers" and sometimes referred to as the "Buyers"), each of whom has agreed to purchase the Company's Junior Subordinated Notes due 2009 (the "Notes") and Warrants for the Purchase of Shares of Common Stock of Parent (the "Warrants") pursuant to the Subscription Agreement (as defined below). This Agreement is made pursuant to the Subscription Agreement, dated December 22, 1999 (the "Subscription Agreement"), by and among the Company, Parent and the Buyers. In order to induce the Buyers to purchase the Notes and the Warrants, the Company and Parent have agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Buyers set forth in Section 2 of the Subscription Agreement. Capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Indenture, attached as Exhibit A to the Notes (the "Indenture"). The parties hereby agree as follows: SECTION 1. (a) Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings: Accreted Value: Shall have the meaning assigned to it in the Indenture. Act: The Securities Act of 1933, as amended. Affiliate: As defined in Rule 144 of the Act. Affiliated Market Maker: A Broker-Dealer who is deemed to be an Affiliate of the Company and/or Parent and who is, therefore, required to deliver a prospectus in connection with sales or market making activities. Broker-Dealer: Any broker or dealer registered under the Exchange Act. 2 Common Stock: The common stock, par value $0.01 per share, of Parent. Commission: The Securities and Exchange Commission. Demand Registration: As defined in Section 4 hereof. Exchange Act: The Securities Exchange Act of 1934, as amended. Expiration Date: 5:00 p.m. New York City time on December 15, 2009. Note Registration Statement: Any registration statement of the Company relating to the registration of Transfer Restricted Notes, in each case, (i) that is filed pursuant to the provisions of this Agreement and (ii) including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. Parent Securities: The Common Stock and securities convertible into or exchangeable for Common Stock and options, warrants or other rights to acquire Common Stock or any other equity security issued by Parent. Prospectus: The prospectus included in a Registration Statement at the time such Registration Statement is declared effective, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. Public Offering: An underwritten public offering of Transfer Restricted Securities of the Company or Parent pursuant to an effective registration statement under the Act. Registration Statement: Any Note Registration Statement or Warrant Registration Statement. Rule 144: Rule 144 promulgated under the Act. Securities: shall mean the Notes, the Warrants and the Warrant Shares. TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the Indenture. Transfer Restricted Notes: Each Note, until the earliest to occur of (a) the date on which such Note has been disposed of in accordance with a Note 3 Registration Statement, or (b) the date on which such Note is distributed to the public pursuant to Rule 144 under the Act. Transfer Restricted Securities: Each Transfer Restricted Note and each Transfer Restricted Warrant Security. Transfer Restricted Warrant Securities: (a) Each Warrant and Warrant Share until the earlier to occur of (i) the date on which such Warrant or Warrant Share has been disposed of in accordance with a Warrant Registration Statement or the date on which such Warrant Share is issued upon exercise of a Warrant in accordance with a registration statement filed under the Act and (ii) the date on which such Warrant or Warrant Share is distributed to the public pursuant to Rule 144 under the Act. Warrant Agent: The warrant agent, if any, with respect to the Warrants. Warrant Share: The Common Stock of Parent issuable on the exercise of the Warrants. Warrant Registration Statement: Any registration statement of Parent relating to the registration of Transfer Restricted Warrant Securities, including any Warrant Shelf Registration Statement, in each case, (i) that is filed pursuant to the provisions of this Agreement and (ii) including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. (b) Other Definitions. Defined in Term Section ---- ------- Applicable Holdback Period 6 Demand Registration 4(a) Demand Registration Reguest 3(a) Holder 2 Incidental Registration 5(a) indemnified party 10(c) indemnifying person 10(c) Inspectors 8(a) Losses 10(a) Maximum Offering Size 4(e) 4 Recommencement Date 8(c) Records 8(a) Selling Holders 4(a) Suspension Notice 8(c) Warrant Shelf Registration Statement 7(a) SECTION 2. Holders. A person is deemed to be a holder of Transfer Restricted Securities whenever such person is the record holder of Transfer Restricted Securities. As used herein, "Holder" refers to the holder of a Transfer Restricted Note or a Transfer Restricted Warrant Security, or both, as the context may require. SECTION 3. Demand Registration Rights. (a) Notes: At any time after Parent has filed its annual report on Form 10-K for the year ended December 31, 1999, if the Company or Parent, as the case may be, shall receive a written request (a "Demand Registration Request") from the Holders of 50% or more of the aggregate Accreted Value of Transfer Restricted Notes then outstanding to effect the registration of such Transfer Restricted Notes, then the Company or Parent, as the case may be, shall effect the registration under the Act of such Transfer Restricted Notes in accordance with Section 4 hereof. (b) Warrant Securities: At any time after Parent has filed its annual report on Form 10-K for the year ended December 31, 1999 if Parent shall receive a Demand Registration Request from the Holders of 50% or more of the aggregate Transfer Restricted Warrant Securities then outstanding to effect the registration of such Transfer Restricted Warrant Securities, then Parent shall effect the registration under the Act of such Transfer Restricted Warrant Securities in accordance with Section 4 and Section 7 hereof. SECTION 4. Demand Registration. (a) If the Company or Parent, as the case may be shall receive a Demand Registration Request from the Holders (the "Selling Holders") of Transfer Restricted Securities that the Company or Parent, as the case may be, effect the registration under the Act of all or a portion of such Selling Holders' Transfer Restricted Securities, and specifying the intended method of disposition thereof, then the Company or Parent, as the case may be, shall promptly give written notice of such requested registration (a "Demand Registration") at least 30 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to all Holders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Act of: 5 (i) the Transfer Restricted Securities which the Company or Parent, as the case may be, has been so requested to register by the Selling Holders, then held by such Selling Holders; and (ii) subject to the restrictions set forth in Section 4(e), all other Transfer Restricted Securities of the same type as that to which the request by the Selling Holders relates which any other person entitled to request Parent to effect an Incidental Registration (as such term is defined in Section 5) pursuant to Section 5 has requested Parent to register by written request received by Parent within 15 days after the receipt by such Holders of such written notice given by Parent, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Transfer Restricted Securities so to be registered; provided that, (A) the Company shall not be obligated to effect more than two Demand Registrations with respect to Transfer Restricted Notes, and (B) Parent shall not be obligated to effect more than one Demand Registration with respect to Transfer Restricted Warrant Securities in addition to its obligations under Section 7; provided, further that the Company shall not be obligated to effect any shelf registration of Transfer Restricted Notes and neither the Company nor Parent shall be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Transfer Restricted Securities to be included in such Demand Registration, in the reasonable opinion of DLJ Merchant Banking Partners II, L.P. exercised in good faith, equals or exceeds $15,000,000. In no event will the Company or Parent be required to effect more than one Demand Registration within any four-month period. (b) Promptly after the expiration of the 15-day period referred to in Section 4(a)(ii) hereof, Parent will notify all of the Selling Holders of the other Holders who have requested to include their Transfer Restricted Warrant Securities in the registration and the number of Transfer Restricted Securities requested to be included therein. The Selling Holders requesting a registration under this Section 4 may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Company or Parent, as the case may be, revoking such request, in which case such request, so revoked, shall be considered an effected Demand Registration unless the Selling Holders reimburse the Company or Parent, as the case may be, for all costs incurred by the Company or Parent, as the case may be, in connection with such registration, or unless such revocation arose out of the fault of the Company or Parent, as the case may be, in which case such request shall not be considered an effected Demand Registration. 6 (c) The Company or Parent, as the case may be, will pay all registration expenses as set forth in Section 9 hereof. (d) A registration made pursuant to this Section 4 shall not be deemed to have been effected (i) unless the registration statement relating thereto (A) has become effective under the Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Transfer Restricted Securities of the Holders included in such registration have actually been sold thereunder); provided that if after any registration statement filed pursuant to this Section 4 becomes effective (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court and (y) less than 75% of the Transfer Restricted Securities included in such registration statement has been sold thereunder, such registration statement shall not be considered an effected Demand Registration or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) or 5.01(f) such that less than 66 2/3% of the Transfer Restricted Securities of the Selling Holders sought to be included in such registration are included. (e) If a Demand Registration involves an underwritten Public Offering and the managing underwriter shall advise the Company or Parent, as the case may be, and the Selling Holders that, in its view, (i) the number of Transfer Restricted Securities requested to be included in such registration (including any securities which the Company or Parent, as the case may be, proposes to be included which are not Transfer Restricted Securities) or (ii) the inclusion of some or all of the Transfer Restricted Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company or Parent, as the case may be, will include in such registration, in the priority listed below, up to the Maximum Offering Size: (i) first, the Transfer Restricted Securities requested to be included in such registration pursuant to Section 4(a)(i) and pursuant to Section 5 by the Holders, allocated (if necessary) pro rata among such Holders on the basis of the relative number of Transfer Restricted Securities each such Holder has requested to be included in such registrations; and (ii) second, securities to be sold for the account of other persons (including the Company or Parent, as the case may be), with such priorities among them as the Company or Parent, as the case may be, shall determine. 7 (f) Registration Statement Form. Registrations under this Section 4 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company or Parent, as the case may be, and as shall be reasonably acceptable to the Holders and (ii) as shall permit the disposition of Transfer Restricted Securities in accordance with the method or methods of disposition intended on the part of the Holders. Notwithstanding anything herein to the contrary, if, pursuant to a registration pursuant to this Section 4, the Company or Parent, as the case may be, proposes to effect registration by filing of a registration statement on Form S-3 (or any successor or similar short-form registration statement) and any managing underwriter shall advise the Company or Parent, as the case may be, in writing that, in its opinion, the use of another form of registration statement is of material importance to the success of such proposed offering, then such registration shall be effected on such other form. SECTION 5. Incidental Registration. (a) If Parent proposes to register any Parent Securities under the Act (other than a registration (A) on Form S-8 or S-4 or any successor or similar forms, (B) relating to Common Stock issuable upon exercise of employee stock options or in connection with any employee benefit or similar plan of Parent or (C) in connection with a direct or indirect acquisition by Parent of another company, whether or not for sale for its own account), it will each such time, subject to the provisions of Section 5(b), give prompt written notice at least 40 days prior to the anticipated filing date of the registration statement relating to such registration to each Holder of Transfer Restricted Warrant Securities, which notice shall set forth such Holder's rights under this Section 5 and shall offer such Holders the opportunity to include in such registration statement such number of Transfer Restricted Warrant Securities as each such Holder may request (an "Incidental Registration"). Upon the written request of any such Holder made within 20 days after the receipt of notice from Parent (which request shall specify the number of Transfer Restricted Warrant Securities intended to be disposed of by such Holder), Parent will use its best efforts to effect the registration under the Act of all Transfer Restricted Warrant Securities which Parent has been so requested to register by such Holders, to the extent required to permit the disposition of the Transfer Restricted Warrant Securities so to be registered; provided that (I) if such registration involves a Public Offering, all such Holders requesting to be included in Parent's registration must sell their Transfer Restricted Warrant Securities to the underwriters on the same terms and conditions as apply to Parent and (II) if, at any time after giving written notice of its intention to register any Parent Securities pursuant to this Section 5 and prior to the effective date of the registration statement filed in connection with such registration, Parent shall determine for any reason not to register such securities, Parent shall give written notice to all such Holders of Transfer Restricted Warrant Securities and, thereupon, shall be relieved of its 8 obligation to register any Transfer Restricted Warrant Securities in connection with such registration. No registration effected under this Section 5 shall relieve Parent of its obligations to effect a Demand Registration to the extent required by Section 4. Parent will pay all Registration Expenses in connection with each registration of Transfer Restricted Warrant Securities requested pursuant to this Section 5. (b) If a registration pursuant to this Section 5 involves a Public Offering (other than in the case of a Public Offering requested under Section 3 by the Holders in a Demand Registration, in which case the provisions with respect to priority of inclusions in such offering as set forth in Section 4(e) shall apply) and the managing underwriter advises Parent that, in its view, the number of Parent Securities and Transfer Restricted Warrant Securities that Parent and Holders intend to include in such registration exceeds the Maximum Offering Size, Parent will include in such registration, in the following priority, up to the Maximum Offering Size: (i) first, so much of the Parent Securities proposed to be registered by Parent as would not cause the offering to exceed the Maximum Offering Size; (ii) second, all Transfer Restricted Warrant Securities requested to be included in such registration by the Holders pursuant to this Section 5 (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Transfer Restricted Warrant Securities so requested to be included in such registration); and (iii) third, securities to be sold for the account of other persons, with such priorities among them as Parent shall determine. SECTION 6. Holdback Agreements. If any registration of Transfer Restricted Securities shall be in connection with a Public Offering, the Holders agree not to effect any public sale or distribution, including any sale pursuant to Rule 144, or any successor provision, under the Act, of any Transfer Restricted Securities, and not to effect any such public sale or distribution of any other securities of the Company or Parent or of any stock convertible into or exchangeable or exercisable for any securities of the Company or Parent (in each case, other than as part of such Public Offering) during the 14 days prior to the effective date of such registration statement (except as part of such registration) or during the period after such effective date equal to the lesser of (i) such period of time as agreed between such managing underwriter, the Company and Parent and (ii) 180 days (such lesser period, the "Applicable Holdback Period"). 9 SECTION 7. Warrant Shelf Registration. (a) If any Warrants are included in a Demand Registration, Parent shall prepare and cause to be filed with the Commission on or prior to 30 days (or, if the Warrants are not at such time of the same class as securities listed on a national securities exchange or quoted in a U.S. automated system (as determined pursuant to Rule 144A under the Act, 90 days)) after the date of the Demand Registration Request, pursuant to Rule 415 under the Act, a Registration Statement (each a "Warrant Shelf Registration Statement") on the appropriate form relating to resales of Transfer Restricted Warrant Securities by the Holders thereof. Parent shall use its best efforts to cause the Warrant Shelf Registration Statement to be declared effective by the Commission on or before 90 days (or, if the Warrants are not at such time of the same class as securities listed on a national securities exchange or quoted in a U.S. automated system (as determined pursuant to Rule 144A under the Act, 180 days), after the date the Demand Registration is effected. To the extent necessary to ensure that the Warrant Shelf Registration Statement is available for sales of Transfer Restricted Warrant Securities by the Holders thereof entitled to the benefit of this Section 7(a), Parent shall use its best efforts to keep any Warrant Shelf Registration Statement required by this Section 7(a) continuously effective, supplemented, amended and current as required by and subject to the provisions of Section 8(b) hereof and in conformity with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, until the earlier of (i) two years following the first date as of which no Warrants remain outstanding and (ii) if all of the Warrants expire unexercised, the Expiration Date; provided that such obligation shall expire before such date if Parent delivers to the Warrant Agent (if there is a Warrant Agent at such time, or, if there is no Warrant Agent, to the Holders) a written opinion of counsel to Parent (which opinion of counsel shall be satisfactory to Parent) that all Holders (other than Affiliates of Parent) of Warrants and Warrant Shares may resell the Warrants and the Warrant Shares without registration under the Act and without restriction as to the manner, timing or volume of any such sale and instruct the Warrant Agent to (or if there is no Warrant Agent, Parent shall) remove the private placement legend from all Warrants and Warrant Shares; provided, further, that notwithstanding the foregoing, any Affiliate of Parent may, with notice to Parent, require Parent to keep the Registration Statement continuously effective for resales by such Affiliate for so long as such Affiliate holds Warrants or Warrant Shares, including as a result of any market-making activities or other trading activities of such Affiliate. (b) Provision by Holders of Certain Information in Connection with the Warrant Shelf Registration Statement. No Holder of Transfer Restricted Warrant Securities may include any of its Transfer Restricted Warrant Securities in any 10 Warrant Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to Parent in writing the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for use in connection with any Warrant Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Selling Holder agrees to promptly furnish additional information required to be disclosed in order to make the information previously furnished to Parent by such Holder not materially misleading. Parent will promptly prepare and file a Prospectus supplement including such information provided by any Holder to the extent that such Holder reasonably determines that a Prospectus supplement is required in connection with such Holder's sale of Transfer Restricted Warrant Securities under the Warrant Shelf Registration Statement and so notifies Parent. (c) Parent shall have no registration obligations under this Agreement with respect to any Warrants or Warrant Shares except as provided in Section 3(b) or this Section 7. References herein to the Warrants, Warrant Shares and Transfer Restricted Warrant Securities shall only refer to such securities to the extent that Parent has registration obligations therefor. SECTION 8. Registration Procedures. (a) Whenever Holders request that any Transfer Restricted Securities be registered pursuant to Sections 3, 4 or 5, the Company or Parent, as the case may be, will, subject to the provisions of such Sections, use its best efforts to effect the registration and the sale of such Transfer Restricted Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request: (i) The Company or Parent, as the case may be, will as expeditiously as possible prepare and file with the Commission a registration statement on any form, subject to Section 4(f), for which the Company or Parent, as the case may be, then qualifies or which counsel for the Company or Parent, as the case may be, shall deem appropriate and which form shall be available for the sale of the Transfer Restricted Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its best efforts to cause such filed registration statement to become and remain effective for a period of not less than 180 days. (ii) The Company or Parent, as the case may be, will, if requested, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish to participating Holder and each underwriter, if any, of the Transfer Restricted Securities covered by such registration statement copies of such registration statement as 11 proposed to be filed, and thereafter the Company or Parent, as the case may be, will furnish to such Holder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Holder or underwriter may reasonably request in order to facilitate the disposition of the Transfer Restricted Securities owned by such Holder. (iii) After the filing of the registration statement, the Company or Parent, as the case may be, will promptly notify each Holder holding Transfer Restricted Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered. (iv) The Company or Parent, as the case may be, will use its best efforts to (A) register or qualify the Transfer Restricted Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions in the United States as any Holder holding such Transfer Restricted Securities reasonably (in light of such Holder's intended plan of distribution) requests and (B) cause such Transfer Restricted Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company or Parent, as the case may be, and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition of the Transfer Restricted Securities owned by such Holder; provided that the Company or Parent, as the case may be, will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction. (v) The Company or Parent, as the case may be, will immediately notify each Holder holding such Transfer Restricted Securities, at any time when a prospectus relating thereto is required to be delivered under the Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Transfer Restricted Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein 12 or necessary to make the statements therein not misleading and promptly prepare and make available to each such Holder any such supplement or amendment. (vi) The Holder will have the right, in its sole discretion, to select an underwriter or underwriters in connection with any Public Offering, which underwriter or underwriters may include any Affiliate of DLJ Merchant Banking Partners II, L.P. In connection with any Public Offering, the Company or Parent, as the case may be, will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of Transfer Restricted Securities in any such Public Offering, including the engagement of a "qualified independent underwriter" in connection with the qualification of the underwriting arrangements with the NASD. (vii) Upon the execution of confidentiality agreements in form and substance satisfactory to the Company or Parent, as the case may be, the Company or Parent, as the case may be, will make available for inspection by any Holder and any underwriter participating in any disposition pursuant to a registration statement being filed by the Company or Parent, as the case may be, pursuant to this Section 8 and any attorney, accountant or other professional retained by any such Holder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company or Parent, as the case may be, (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's or Parent's, as the case may be, officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records that the Company or Parent, as the case may be, determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (B) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Holder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in Company's or Parent's securities unless and until such information is made generally available to the public. Each Holder further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company or Parent, as the case may be, and allow the Company or Parent, as the case may be, at its expense, to undertake 13 appropriate action to prevent disclosure of the Records deemed confidential. (viii) The Company or Parent, as the case may be, will furnish to each such Holder and to each such underwriter, if any, a signed counterpart, addressed to such underwriter, of (A) an opinion or opinions of counsel to the Company or Parent, as the case may be, and (B) a comfort letter or comfort letters from the Company's or Parent's, as the case may be, independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as a majority of such Holders or the managing underwriter therefor reasonably requests. The Company or Parent, as the case may be, may require each such Holder to promptly furnish in writing to the Company or Parent, as the case may be, such information regarding the distribution of the Transfer Restricted Securities as the Company or Parent, as the case may be, may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each such Holder agrees that, upon receipt of any notice from the Company or Parent, as the case may be, of the happening of any event of the kind described in Section 8(a)(v), such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the registration statement covering such Transfer Restricted Securities until such Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(v), and, if so directed by the Company or Parent, as the case may be, such Holder will deliver to the Company or Parent, as the case may be, all copies, other than any permanent file copies then in such Holder's possession, of the most recent prospectus covering such Transfer Restricted Securities at the time of receipt of such notice. In the event that the Company or Parent, as the case may be, shall give such notice, the Company or Parent, as the case may be, shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 8(a)(i)) by the number of days during the period from and including the date of the giving of notice pursuant to Section 8(a)(v) to the date when the Company or Parent, as the case may be, shall make available to such Holder a prospectus supplemented or amended to conform with the requirements of Section 8(a)(v). (b) Special Warrant Shelf Registration Procedures. In connection with any Warrant Shelf Registration Statement and any related Prospectus required by this Agreement, Parent shall: 14 (i) use its best efforts to keep such Warrant Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 7 of this Agreement. Upon the occurrence of any event that would cause any such Warrant Shelf Registration Statement or the Prospectus contained therein (A) to contain an untrue statement of material fact or omit to state any material fact necessary to make the statements therein not misleading or (B) not to be effective and usable for resale of the relevant Transfer Restricted Warrant Securities during the period required by this Agreement, Parent shall file promptly an appropriate amendment to such Warrant Shelf Registration Statement curing such defect, and, if Commission review is required, use best efforts to cause such amendment to be declared effective as soon as practicable. (ii) prepare and file with the Commission such amendments and post-effective amendments to the Warrant Shelf Registration Statement as may be necessary to keep such Warrant Shelf Registration Statement effective for the period set forth in Section 7 hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the provisions of the Act with respect to the disposition of all securities covered by such Warrant Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Warrant Shelf Registration Statement or supplement to the Prospectus; (iii) advise each Holder who is an Affiliated Market Maker promptly and, if requested by such person, confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Warrant Shelf Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Warrant Shelf Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Warrant Shelf Registration Statement under the Act or of the suspension by any state securities commission of the qualification of the relevant Transfer Restricted Warrant Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, and (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made 15 in the Warrant Shelf Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Warrant Shelf Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Warrant Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the relevant Transfer Restricted Warrant Securities under state securities or Blue Sky laws, Parent shall use best efforts to obtain the withdrawal or lifting of such order at the earliest possible time; (iv) subject to Section 8(b)(i), if any fact or event contemplated by Section 8(b)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Warrant Shelf Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the relevant Transfer Restricted Warrant Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (v) furnish to each Holder and each Affiliated Market Maker in connection with such exchange or sale, if any, before filing with the Commission, copies of any Warrant Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Warrant Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Warrant Shelf Registration Statement), which documents will be subject to the review and comment of such persons in connection with such sale, if any, for a period of at least five business days, and Parent will not file any such Warrant Shelf Registration Statement or Prospectus or any amendment or supplement to any such Warrant Shelf Registration Statement or Prospectus (including all such documents incorporated by reference) to which such persons shall reasonably object within five business days after the receipt thereof. Such person shall be deemed to have reasonably objected to such filing if such Warrant Shelf Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains an untrue statement of a material fact or 16 omit to state any material fact necessary to make the statements therein not misleading or fails to comply with the applicable requirements of the Act; (vi) promptly prior to the filing of any document that is to be incorporated by reference into a Warrant Shelf Registration Statement or Prospectus, provide copies of such document to each Holder and each Affiliated Market Maker in connection with such exchange or sale, if any, make Parent's representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such persons may reasonably request; (vii) make available, at reasonable times, for inspection by each Holder and each Affiliated Market Maker and any attorney or accountant retained by such persons, all financial and other records, pertinent corporate documents of Parent and cause Parent's officers, directors and employees to supply all information reasonably requested by any such persons, attorney or accountant in connection with such Warrant Shelf Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; (viii) if requested by any Holders in connection with such exchange or sale or any Affiliated Market Maker, promptly include in any Warrant Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such persons may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the relevant Transfer Restricted Warrant Securities and the use of the Warrant Shelf Registration Statement or Prospectus for market making activities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after Parent is notified of the matters to be included in such Prospectus supplement or post-effective amendment; (ix) furnish to each Holder in connection with such exchange or sale and each Affiliated Market Maker, without charge, at least one copy of the Warrant Shelf Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference); (x) deliver to each Holder and each Affiliated Market Maker without charge, as many copies of the Prospectus (including each 17 preliminary prospectus) and any amendment or supplement thereto as such persons reasonably may request; Parent hereby consents to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each selling person in connection with the offering and the sale of the Transfer Restricted Warrant Securities covered by the Prospectus or any amendment or supplement thereto and all market making activities of such Affiliated Market Maker, as the case may be; (xi) upon the request of any Holder, enter into such agreements (including underwriting agreements) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Warrant Securities pursuant to any applicable Warrant Shelf Registration Statement contemplated by this Agreement as may be reasonably requested by any Holder in connection with any sale or resale pursuant to any applicable Warrant Shelf Registration Statement. In such connection, and also in connection with market making activities by any Affiliated Market Maker, Parent shall: (A) upon request of any person, furnish (or in the case of Sections 8(b)(xi)(A)(2) and 8(b)(xi)(A)(3), use best efforts to cause to be furnished) to each person, upon the effectiveness of the Warrant Shelf Registration Statement or in connection with any sale of the Warrants (or Warrant Shares) pursuant to the Warrant Shelf Registration Statement: (1) a certificate, dated such date, signed on behalf of Parent by (x) the chief executive officer and (y) the principal financial or accounting officer of Parent confirming, as of the date thereof, the matters set forth in Section 6.02(a) of the Subscription Agreement and such other matters as are customary in connection with public offerings of securities similar to the Warrants (or Warrant Shares) as such person may reasonably request; (2) an opinion, dated the date of effectiveness of the Warrant Shelf Registration Statement or the closing date of such sale of Warrants (or Warrant Shares) of counsel for Parent covering matters as are customary for public offerings of securities similar to the Warrants (or Warrant Shares) and such other matters as such person may reasonably request, and in any event including a statement to the effect that such counsel has participated in 18 conferences with officers and other representatives of Parent and representatives of the independent public accountants for Parent and have considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements; and that such counsel advises that, on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon the statements of officers and other representatives of Parent and without independent check or verification), no facts came to such counsel's attention that caused such counsel to believe that the applicable Warrant Shelf Registration Statement, at the time such Warrant Shelf Registration Statement or any post-effective amendment thereto became effective and, in the case of any sale pursuant to a Warrant Shelf Registration Statement, as of the date of the purchase agreement for such sale and the closing date therefor, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus contained in such Warrant Shelf Registration Statement as of its date and, in the case of the opinion dated the closing date of a sale, as of the closing date of such sale, as applicable, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limiting the foregoing, such counsel may state further that such counsel assumes no responsibility for, and has not independently verified, the accuracy, completeness or fairness of the financial statements, notes and schedules and other financial data included in any Warrant Shelf Registration Statement contemplated by this Agreement or the related Prospectus; and (3) a customary comfort letter, dated the date of effectiveness of the Warrant Shelf Registration Statement, or as of the date of closing of a sale pursuant to the Warrant Shelf Registration Statement, as the case may be, from the independent accountants for Parent in the customary form and covering matters of the type customarily covered in 19 comfort letters to underwriters in connection with underwritten offerings; and (B) deliver such other documents and certificates as may be reasonably requested by the selling such persons to evidence compliance with the matters covered in Section 8(b)(xi)(A) above and with any customary conditions contained in any agreement entered into by Parent pursuant to this Section 8(b)(xi); (xii) prior to any public offering of Transfer Restricted Warrant Securities, cooperate with the selling Holders and their counsel in connection with the registration and qualification of the Transfer Restricted Warrant Securities under the securities or Blue Sky laws of such jurisdictions as the selling Holders may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Warrant Securities covered by the applicable Warrant Shelf Registration Statement; provided, however, that Parent shall not be required to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Warrant Shelf Registration Statement, in any jurisdiction where it is not now so subject; (xiii) in connection with any sale of Transfer Restricted Warrant Securities that will result in such securities no longer being Transfer Restricted Warrant Securities, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Warrant Securities to be sold and not bearing any restrictive legends; and to register such Transfer Restricted Warrant Securities in such denominations and such names as the selling Holders may request at least two business days prior to such sale of Transfer Restricted Warrant Securities; (xiv) use their respective best efforts to cause the disposition of the Transfer Restricted Warrant Securities covered by the Warrant Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Warrant Securities, subject to the proviso contained in Section 8(b)(xii) above; (xv) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to 20 its security holders with regard to any applicable Warrant Shelf Registration Statement, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) covering a twelve-month period beginning after the effective date of the Warrant Shelf Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the Act); (xvi) provide promptly to each Holder and Affiliated Market Maker, upon request, each document filed with the Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act. (c) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer Restricted Security and each Affiliated Market Maker agrees that, upon receipt of the notice referred to in Section 8(b)(iii)(C) or any notice from the Company (in the case of a Note Registration Statement) or Parent (in the case of a Warrant Registration Statement) of the existence of any fact of the kind described in Section 8(b)(iii)(D) hereof (in each case, a "Suspension Notice"), such person will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until (i) such person has received copies of the supplemented or amended Prospectus contemplated by Section 8(b)(iv) hereof, or (ii) such person is advised in writing by the Company or Parent, as applicable, that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus (in each case, the "Recommencement Date"). Each person receiving a Suspension Notice hereby agrees that it will either (i) destroy any Prospectuses, other than permanent file copies, then in such person's possession which have been replaced by the Company or Parent, as applicable with more recently dated Prospectuses or (ii) deliver to the Company or Parent, as applicable(at the Company's or Parent's expense) all copies, other than permanent file copies, then in such person's possession of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of the Suspension Notice. The time period regarding the effectiveness of such Registration Statement set forth in Section 4 or Section 7 hereof, as applicable, shall be extended by a number of days equal to the number of days in the period from and including the date of delivery of the Suspension Notice to the date of delivery of the Recommencement Date. SECTION 9. Registration Expenses. (a) All expenses incident to the Company's and Parent's performance of or compliance with this Agreement will be borne by the Company or Parent, as the case may be, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and 21 expenses; (ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws (including without limitation the costs and expenses of any Trustee selected pursuant to the requirements of the Trust Indenture Act); (iii) all expenses of printing (including printing of Prospectuses whether for sales, market making or otherwise), messenger and delivery services and telephone; (iv) all fees and disbursements of counsel for the Company, Parent and the Holders of Transfer Restricted Securities; (v) all application and filing fees in connection with listing the Warrants or the Warrant Shares on a national securities exchange or automated quotation system pursuant to the requirements hereof; and (vi) all fees and disbursements of independent certified public accountants of the Company and Parent (including the expenses of any special audit and comfort letters required by or incident to such performance). The Company and Parent will each, in any event, bear its respective internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any person, including special experts, retained by the Company or Parent. The Holders will bear any underwriting discounts and commissions incurred in connection with the resale of any of their securities. (b) In connection with any Registration Statement required by this Agreement, the Company or Parent, as the case may be, will reimburse the Buyers and the Holders of Transfer Restricted Securities who are selling or reselling Transfer Restricted Notes pursuant to the "Plan of Distribution" contained in a Note Registration Statement or selling or reselling Warrants or Warrant Shares pursuant to a Warrant Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Davis Polk & Wardwell, unless another firm shall be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared. SECTION 10. Indemnification. (a) The Company agrees to indemnify and hold harmless each Holder, its directors, officers and each person, if any, who controls such Holder (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and against any and all losses, claims, damages, liabilities, judgments, (including without limitation, any legal or other expenses incurred in connection with investigating or defending any matter, including any action that could give rise to any such losses, claims, damages, liabilities or judgments) (collectively, "Losses") caused by any untrue statement or alleged untrue statement of a 22 material fact contained in any Registration Statement, preliminary prospectus or Prospectus (or any amendment or supplement thereto) provided by the Company to any Holder or any prospective purchaser of Notes or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such Losses are caused by an untrue statement or omission or alleged untrue statement or omission that is based upon information relating to any of the Holders furnished in writing to the Company by any of the Holders; provided that the Company shall not be liable to any Holder, its directors, officers and any controlling person for any Losses that are caused by any untrue statement or alleged untrue statement of a material fact if (i) such Holder was required by law to send or deliver, and failed to send or deliver, a copy of the Prospectus with or prior to delivery of written confirmation of the sale by such Holder to the person asserting the claims from which such Losses arise and (ii) the Prospectus would have corrected such untrue statement or alleged untrue statement or omission or alleged omission. Parent agrees to indemnify and hold harmless each Holder, its directors, officers and each person, if any, who controls such Holder (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and against any and all Losses caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, preliminary prospectus or Prospectus (or any amendment or supplement thereto) provided by Parent to any Holder or any prospective purchaser of registered Warrants or Warrant Shares, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such Losses are caused by an untrue statement or omission or alleged untrue statement or omission that is based upon information relating to any of the Holders furnished in writing to Parent by any of the Holders; provided that Parent shall not be liable to any Holder, its directors, officers and any controlling person for any Losses that are caused by any untrue statement or alleged untrue statement of a material fact if (i) such Holder was required by law to send or deliver, and failed to send or deliver, a copy of the Prospectus with or prior to delivery of written confirmation of the sale by such Holder to the person asserting the claims from which such Losses arise and (ii) the Prospectus would have corrected such untrue statement or alleged untrue statement or omission or alleged omission. (b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to indemnify and hold harmless the Company (in the case of any Note Registration Statement) or Parent (in the case of any Warrant Registration Statement), and their respective directors and officers, and each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20 of the 23 Exchange Act) the Company or Parent, as applicable, to the same extent as the foregoing indemnity from the Company or Parent, as applicable, set forth in Section 10(a) above, but only with reference to information relating to such Holder furnished in writing to the Company or Parent, as applicable, by such Holder expressly for use in such Registration Statement. In no event shall any Holder, its directors, officers or any person who controls such Holder be liable or responsible for any amount in excess of the amount by which the total amount received by such Holder with respect to its sale of Transfer Restricted Securities pursuant to a Registration Statement exceeds (i) the amount paid by such Holder for such Transfer Restricted Securities and (ii) the amount of any damages that such Holder, its directors, officers or any person who controls such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. (c) In case any action shall be commenced involving any person in respect of which indemnity may be sought pursuant to Section 10(a) or 10(b) (the "indemnified party"), the indemnified party shall promptly notify the person against whom such indemnity may be sought (the "indemnifying person") in writing and the indemnifying party shall assume the defense of such action, including the employment of counsel reasonably satisfactory to the indemnified party and the payment of all fees and expenses of such counsel, as incurred (except that in the case of any action in respect of which indemnity may be sought pursuant to both Sections 10(a) and 10(b), a Holder shall not be required to assume the defense of such action pursuant to this Section 10(c), but may employ separate counsel and participate in the defense thereof, but the fees and expenses of such counsel, except as provided below, shall be at the expense of the Holder). Any indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both the indemnified party and the indemnifying party, and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party). In any such case, the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties and all 24 such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by a majority of the Holders, in the case of the parties indemnified pursuant to Section 10(a), and by the Company or Parent, as applicable, in the case of parties indemnified pursuant to Section 10(b). The indemnifying party shall indemnify and hold harmless the indemnified party from and against any and all losses, claims, damages, liabilities and judgments by reason of any settlement of any action (i) effected with its written consent or (ii) effected without its written consent if the settlement is entered into more than twenty business days after the indemnifying party shall have received a request from the indemnified party for reimbursement for the fees and expenses of counsel (in any case where such fees and expenses are at the expense of the indemnifying party) and, prior to the date of such settlement, the indemnifying party shall have failed to comply with such reimbursement request. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened action in respect of which the indemnified party is or could have been a party and indemnity or contribution may be or could have been sought hereunder by the indemnified party, unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability on claims that are or could have been the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of the indemnified party. (d) To the extent that the indemnification provided for in this Section 10 is unavailable to an indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect the relative benefits received by the Company (in the case of any Note Registration Statement) or Parent (in the case of any Warrant Registration Statement), on the one hand, and the Holders, on the other hand, from their sale of Transfer Restricted Securities or (ii) if the allocation provided by clause 10(d)(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 10(d)(i) above but also the relative fault of the Company or Parent, as applicable, on the one hand, and of the Holder, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative fault of the Company or Parent, as applicable, on the one hand, and of the Holder, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a 25 material fact relates to information supplied by the Company or Parent, as applicable, on the one hand, or by the Holder, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, Parent and each Holder agree that it would not be just and equitable if contribution pursuant to this Section 10(d) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or judgments referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such indemnified party in connection with investigating or defending any matter, including any action, that could have given rise to such losses, claims, damages, liabilities or judgments. Notwithstanding the provisions of this Section 10, no Holder, its directors, its officers or any person, if any, who controls such Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total received by such Holder with respect to the sale of Transfer Restricted Securities pursuant to a Registration Statement exceeds (i) the amount paid by such Holder for such Transfer Restricted Securities and (ii) the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders' obligations to contribute pursuant to this Section 10(d) are several in proportion to the respective principal amount of Transfer Restricted Securities held by each Holder hereunder and not joint. (e) The Company and Parent agree that the indemnity and contribution provisions of this Section 10 shall apply to Affiliated Market Makers to the same extent, on the same conditions, as it applies to Holders. SECTION 11. Rule 144A and Rule 144. Each of the Company and Parent agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding and during any period in which such person (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any Holder, to such Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities designated by such Holder or beneficial owner, the information required by Rule 144A(d)(4) under 26 the Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby in a timely manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144. SECTION 12. Miscellaneous. (a) Remedies. The Company and Parent acknowledge and agree that any failure by the Company and/or Parent to comply with their respective obligations under Section 4 or Section 7 hereof may result in material irreparable injury to the Buyers, the Holders or any Affiliated Market Makers for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Buyers, any Holder or any Affiliated Market Makers may obtain such relief as may be required to specifically enforce the Company's obligations under Section 4 hereof and Parent's obligations under Section 4 and Section 7 hereof. The Company and Parent further agree to waive the defense in any action for specific performance that a remedy at law would be adequate. (b) No Inconsistent Agreements. Neither the Company nor Parent will, on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither the Company nor Parent has previously entered into any agreement granting any registration rights with respect to its securities to any person other than the Investor's Agreement dated as of May 22, 1998 among Parent and the investors and stockholders party thereto as in effect on the date hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's and Parent's securities under any agreement in effect on the date hereof. (c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless (i) in the case of this clause 12(c)(i), the Company and Parent have obtained the written consent of Holders of all outstanding Transfer Restricted Securities, (ii) in the case of all other provisions hereof with respect to the Transfer Restricted Notes, the Company has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Notes and (iii) in the case of all other provisions hereof with respect to the Transfer Restricted Warrant Securities, Parent has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Warrant Securities (excluding 27 in each case Transfer Restricted Securities held by Parent, the Company and any Affiliate of the Company or Parent other than the Buyers). (d) Third Party Beneficiary. The Holders and any Affiliated Market Makers shall be third party beneficiaries to the agreements made hereunder between the Company and Parent, on the one hand, and the Buyers, on the other hand, and shall have the right to enforce such agreements directly to the extent they may deem such enforcement necessary or advisable to protect their rights or the rights of Holders and Affiliated Market Makers hereunder. (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder of Notes: at the address set forth on the records of the Registrar under the Indenture or the Notes, as applicable, with a copy to the Registrar (if other than the Company) under the Indenture; (ii) if to a Holder of Warrants and/or Warrant Shares, at the address set forth on the records of the Company; and (iii) if to the DLJ Buyers, to: c/o DLJ Merchant Banking Partners II, L.P. 277 Park Avenue New York, NY 10172 Attention: William F. Dawson, Jr. Fax: (212) 892-7272 with a copy to: Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Attention: Richard D. Truesdell, Jr. Fax: (212) 450-4800 28 (iv) if to the Company and/or Parent Thermadyne Holdings Corporation 101 South Hanley Road St. Louis, Missouri 63105 Attention: Jim Tate or Stephanie Josephson Fax: (314) 746-2374 (314) 746-2327 with a copy to: R. Scott Cohen, Esq. Weil, Gotshal & Manges LLP 100 Crescent Court Suite 1300 Dallas, TX 75201-6950 Fax: (214) 746-7777 All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next business day, if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the person giving the same to the Trustee (if there is a Trustee as of such date) and the Warrant Agent (if there is a Warrant Agent as of such date) at the address specified in the Indenture and in the terms of the Warrant, respectively. Upon the date of filing of any Registration Statement, notice shall be delivered to any Affiliated Market Makers at the addresses specified by such Affiliated Market Makers in writing to Parent. (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders; provided, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities in violation of the terms hereof or of the Subscription Agreement, the Indenture or the Warrants. If any transferee of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of this Agreement, and by 29 taking and holding such Transfer Restricted Securities such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 30 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. THERMADYNE HOLDINGS CORPORATION. By: --------------------------------------- Name: Title: THERMADYNE MFG. LLC By: --------------------------------------- Name: Title: DLJ MERCHANT BANKING PARTNERS II, L.P. By: --------------------------------------- Name: Title: DLJ MERCHANT BANKING PARTNERS II-A, L.P. By: --------------------------------------- Name: Title: DLJ OFFSHORE PARTNERS II, C.V. By: --------------------------------------- Name: Title: 31 DLJ DIVERSIFIED PARTNERS, L.P. By: --------------------------------------- Name: Title: DLJ DIVERSIFIED PARTNERS-A, L.P. By: --------------------------------------- Name: Title: DLJMB FUNDING II, INC. By: --------------------------------------- Name: Title: DLJ MILLENNIUM PARTNERS, L.P. By: --------------------------------------- Name: Title: DLJ MILLENNIUM PARTNERS-A, L.P. By: --------------------------------------- Name: Title: DLJ EAB PARTNERS, L.P. By: --------------------------------------- Name: Title: 32 DLJ ESC II L.P. By: --------------------------------------- Name: Title: DLJ FIRST ESC, L.P. By: --------------------------------------- Name: Title: 33 EX-5 4 Exhibit 5 Number of Percentage Shared Sole Shares of Shares Sole Voting Voting Dispositive DLJ Entity Owned Owned Power Power Power DLJ Merchant Banking Partners II, L.P. 2,141,172 55.4% 2,141,172 3,399,089 2,141,172 DLJ Merchant Banking Partners II-A, L.P. 85,271 2.4% 85,271 3,399,089 85,271 DLJ Offshore Partners II, C.V. 105,292 2.9% 105,292 3,399,089 105,292 DLJ Diversified Partners, L.P. 125,183 3.5% 125,183 3,399,089 125,183 DLJ Diversified Partners-A, L.P. 46,489 1.3% 46,489 3,399,089 46,489 DLJMB Funding II, Inc. 387,437 10.6% 387,437 3,399,089 387,437 DLJ Millennium Partners, L.P. 34,621 1.0% 34,621 3,399,089 34,621 DLJ Millennium Partners-A, L.P. 6,752 0.2% 6,752 3,399,089 6,752 DLJ EAB Partners, L.P. 9,614 0.3% 9,614 3,399,089 9,614 UK Investment Plan 1997 Partners 49,368 1.4% 49,368 3,399,089 49,368 DLJ ESC II, L.P. 403,770 11.1% 403,770 3,399,089 403,770 DLJ First ESC, L.P 4,120 0.1% 4,120 3,399,089 4,120 DLJ Merchant Banking II, LLC 2,382,722 61.1% 2,382,722 3,399,089 2,382,722 DLJ Merchant Banking II, Inc. 2,382,722 61.1% 2,382,722 3,399,089 2,382,722 DLJ Diversified Associates LP 171,672 4.8% 171,672 3,399,089 171,672 DLJ Diversified Partners, Inc. 171,672 4.8% 171,672 3,399,089 171,672 DLJ LBO Plans Management Corporation 417,504 11.5% 417,504 3,399,089 417,504 DLJ Capital Investors, Inc. 3,399,089 84.4% 3,399,089 3,399,089 3,399,089 UK Investment Plan 1997, Inc. 49,368 1.4% 49,368 3,399,089 49,368 Donaldson Lufkin & Jenrette, Inc. 3,399,089 84.4% 3,399,089 3,399,089 3,399,089 AXA Financial, Inc. Finaxa AXA AXA Assurances I.A.R.D. Mutuelle AXA Assurances Vie Mutuelle AXA Courtage Assurance Mutuelle AXA Conseil Vie Assurance Mutuelle Claude Bebear, as AXA Voting Trustee Patrice Garnier, as AXA Voting Trustee Henri de Clermont-Tonnerre, as AXA Voting Trustee
Where no number is indicated, see Item 5. -----END PRIVACY-ENHANCED MESSAGE-----