Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
- --------------------------------------------------------
:
In re: : CHAPTER 11
:
THERMADYNE HOLDINGS CORPORATION, :
THERMADYNE MFG. LLC, :
THERMADYNE CAPITAL CORP., :
THERMADYNE INDUSTRIES, INC., :
VICTOR EQUIPMENT COMPANY, : Case No. 01-52840-399
THERMADYNE INTERNATIONAL :
CORPORATION, :
THERMADYNE CYLINDER COMPANY, :
THERMADYNE DYNAMICS CORPORATION, :
C&G SYSTEMS HOLDING, INC., : JOINTLY ADMINISTERED
MECO HOLDING COMPANY, :
TWECO PRODUCTS, INC., :
TAG REALTY, INC., :
VICTOR COYNE INTERNATIONAL, INC., :
VICTOR GAS SYSTEMS, INC., :
STOODY COMPANY, :
THERMAL ARC, INC., :
C&G SYSTEMS, INC., :
MARISON CYLINDER COMPANY, :
WICHITA WAREHOUSE CORPORATION, :
COYNE NATURAL GAS SYSTEMS, INC., :
MODERN ENGINEERING COMPANY, INC., :
:
Debtors. :
:
- --------------------------------------------------------
DEBTORS' FIRST AMENDED AND RESTATED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
BRYAN CAVE LLP WEIL, GOTSHAL & MANGES LLP
One Metropolitan Square Attorneys for the Debtors
211 North Broadway 767 Fifth Avenue
St. Louis, Missouri 63102 New York, NY 10153
(314) 259-2000 (212) 310-8000
and
100 Crescent Court, Suite 1300
Dallas, Texas 75201
(214) 746-7700
Dated: St. Louis, Missouri
January 17, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND CONSTRUCTION OF TERMS..................................................................................2
1.1 Accredited Investor..........................................................................................2
1.2 Administrative Expense or Administrative Expense Claim.......................................................2
1.3 Allowed......................................................................................................2
1.4 Amended Reorganized Parent Bylaws............................................................................2
1.5 Amended Reorganized Parent Certificate of Incorporation......................................................2
1.6 Amended Reorganized Subsidiaries Bylaws......................................................................3
1.7 Amended Reorganized Subsidiaries Certificates of Incorporation...............................................3
1.8 Ballot.......................................................................................................3
1.9 Balloting Agent..............................................................................................3
1.10 Balloting Deadline...........................................................................................3
1.11 Bankruptcy Code..............................................................................................3
1.12 Bankruptcy Court.............................................................................................3
1.13 Bankruptcy Rules.............................................................................................3
1.14 Business Day.................................................................................................3
1.15 Cash.........................................................................................................3
1.16 Cause of Action..............................................................................................3
1.17 Chapter 11 Cases.............................................................................................3
1.18 Claim........................................................................................................3
1.19 Class........................................................................................................4
1.20 Clerk .......................................................................................................4
1.21 Collateral...................................................................................................4
1.22 Commencement Date............................................................................................4
1.23 Confirmation Date............................................................................................4
1.24 Confirmation Hearing.........................................................................................4
1.25 Confirmation Order...........................................................................................4
1.26 Creditors' Committee.........................................................................................4
1.27 Debtors......................................................................................................4
1.28 Debtors in Possession........................................................................................4
1.29 DIP Agent....................................................................................................4
i
TABLE OF CONTENTS
PAGE
1.30 DIP Facility.................................................................................................4
1.31 DIP Financing Order..........................................................................................5
1.32 DIP Lender...................................................................................................5
1.33 DIP Letters of Credit........................................................................................5
1.34 Disbursing Agent.............................................................................................5
1.35 Disclosure Statement.........................................................................................5
1.36 Disputed.....................................................................................................5
1.37 Disputed Claim Amount........................................................................................5
1.38 Distribution Record Date.....................................................................................5
1.39 Docket.......................................................................................................5
1.40 Effective Date...............................................................................................5
1.41 Environmental Claim..........................................................................................5
1.42 Equity Interest..............................................................................................6
1.43 Estates......................................................................................................6
1.44 Exchange Act.................................................................................................6
1.45 Exculpated Parties...........................................................................................6
1.46 Existing Credit Facility.....................................................................................6
1.47 Final Order..................................................................................................6
1.48 General Unsecured Claim......................................................................................6
1.49 Holdback Amount..............................................................................................6
1.50 Indenture Trustee............................................................................................7
1.51 Initial Distribution Date....................................................................................7
1.52 Insured Claim................................................................................................7
1.53 Junior Subordinated Notes....................................................................................7
1.54 Junior Subordinated Notes Claim..............................................................................7
1.55 LIBOR........................................................................................................7
1.56 Lien.........................................................................................................7
1.57 Management Stock Plan .......................................................................................7
1.58 New Board of Directors.......................................................................................7
1.59 New Common Stock.............................................................................................7
1.60 New Senior Debt Notes........................................................................................7
ii
TABLE OF CONTENTS
PAGE
1.61 New Senior Debt Notes Agreement..............................................................................7
1.62 New Senior Debt Notes Documents..............................................................................7
1.63 New Series A Warrant Agreement...............................................................................8
1.64 New Series A Warrants........................................................................................8
1.65 New Series B Warrant Agreement...............................................................................8
1.66 New Series B Warrants........................................................................................8
1.67 New Series C Warrant Agreement...............................................................................8
1.68 New Series C Warrants........................................................................................8
1.69 New Warrant Agreements.......................................................................................8
1.70 New Warrants ................................................................................................8
1.71 New Working Capital Facility.................................................................................8
1.72 New Working Capital Facility Lenders.........................................................................8
1.73 Newco........................................................................................................9
1.74 Newco Acquisition............................................................................................9
1.75 Newco Offering...............................................................................................9
1.76 Newco Offering Maximum.......................................................................................9
1.77 Newco Offering Minimum.......................................................................................9
1.78 9 7/8% Senior Subordinated Notes.............................................................................9
1.79 9 7/8% Senior Subordinated Notes Claim.......................................................................9
1.80 Note Claim...................................................................................................9
1.81 Other Priority Claim.........................................................................................9
1.82 Other Secured Claim..........................................................................................9
1.83 Other Subsidiary Equity Interest.............................................................................9
1.84 Oversubscribed Shares.......................................................................................10
1.85 Person......................................................................................................10
1.86 Plan........................................................................................................10
1.87 Plan Documents..............................................................................................10
1.88 Plan Supplement.............................................................................................10
1.89 Prepetition Agent...........................................................................................10
1.90 Priority Tax Claim..........................................................................................10
1.91 Pro Rata Share..............................................................................................10
iii
TABLE OF CONTENTS
PAGE
1.92 Professional................................................................................................10
1.93 Quarter.....................................................................................................10
1.94 Reconstituted Committee.....................................................................................11
1.95 Reconstituted Committee Compensation........................................................................11
1.96 Registration Rights Agreement...............................................................................11
1.97 Reorganized Debtors.........................................................................................11
1.98 Reorganized Parent..........................................................................................11
1.99 Reorganized Subsidiaries....................................................................................11
1.100 Schedules...................................................................................................11
1.101 Secured Claim...............................................................................................11
1.102 Securities Act..............................................................................................11
1.103 Senior Secured Lender Claim.................................................................................11
1.104 Senior Secured Lenders......................................................................................11
1.105 Shelf Registration Statement................................................................................11
1.106 Stock Purchase Agreement....................................................................................12
1.107 Subscription................................................................................................12
1.108 Subscription Agent..........................................................................................12
1.109 Subscription Agreement......................................................................................12
1.110 Subscription Commencement Date..............................................................................12
1.111 Subscription Commitment.....................................................................................12
1.112 Subscription Date...........................................................................................12
1.113 Subscription Expiration Date................................................................................12
1.114 Subscription Price..........................................................................................12
1.115 Subscription Price Deposit..................................................................................12
1.116 Subsequent Distribution Date................................................................................12
1.117 Subsidiary..................................................................................................12
1.118 Subsidiary Equity Interest..................................................................................12
1.119 Surplus Distributions.......................................................................................13
1.120 Tax Code....................................................................................................13
1.121 10.75% Senior Subordinated Notes............................................................................13
1.122 10.75% Senior Subordinated Notes Claim......................................................................13
iv
TABLE OF CONTENTS
PAGE
1.123 Thermadyne Holdings.........................................................................................13
1.124 Thermadyne Holdings Equity Interest.........................................................................13
1.125 Tort Claim..................................................................................................13
1.126 12 1/2% Senior Discount Debentures..........................................................................13
1.127 12 1/2% Senior Discount Debentures Claim....................................................................13
1.128 Interpretation; Application of Definitions and Rules of Construction........................................13
ARTICLE II. TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS.......................................14
2.1 Administrative Expense Claims...............................................................................14
2.2 Professional Compensation and Reimbursement Claims..........................................................14
2.3 Priority Tax Claims.........................................................................................14
ARTICLE III. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS............................................................15
ARTICLE IV. TREATMENT OF CLAIMS AND EQUITY INTERESTS.................................................................15
4.1 CLASS 1 - OTHER PRIORITY CLAIMS.............................................................................16
4.2 CLASS 2 - SENIOR SECURED LENDER CLAIMS......................................................................16
4.3 CLASS 3 - OTHER SECURED CLAIMS..............................................................................17
4.4 CLASS 4 - GENERAL UNSECURED CLAIMS..........................................................................18
4.5 CLASS 5 - 9 7/8% SENIOR SUBORDINATED NOTES CLAIMS...........................................................18
4.6 CLASS 6 - JUNIOR SUBORDINATED NOTES CLAIMS..................................................................18
4.7 CLASS 7 - 10.75% SENIOR SUBORDINATED NOTES CLAIMS...........................................................19
4.8 CLASS 8 - 12 1/2% SENIOR DISCOUNT DEBENTURE CLAIMS..........................................................19
4.9 CLASS 9 - THERMADYNE HOLDINGS EQUITY INTERESTS AND OTHER EQUITY INTERESTS...................................19
4.10 CLASS 10 - SUBSIDIARY EQUITY INTERESTS......................................................................20
ARTICLE V. PROVISIONS REGARDING VOTING AND DISTRIBUTIONS
UNDER THE PLAN, ALLOWANCE OF CERTAIN CLAIMS, AND
TREATMENT OF DISPUTED, CONTINGENT AND UNLIQUIDATED ADMINISTRATIVE EXPENSE CLAIMS,
CLAIMS AND EQUITY INTERESTS..............................................................................20
5.1 Voting of Claims............................................................................................20
5.2 Nonconsensual Confirmation..................................................................................20
5.3 Allowance of Certain Claims Under the Plan..................................................................20
5.4 Method of Distributions Under the Plan......................................................................21
v
TABLE OF CONTENTS
PAGE
5.5 Distributions Withheld for Disputed General Unsecured Claims................................................23
5.6 Personal Injury Tort Claims and Environmental Claims........................................................24
5.7 Disbursing Agent............................................................................................24
5.8 Setoffs and Recoupment......................................................................................25
5.9 Objections to and Resolution of Administrative Expense Claims, Claims and Equity Interests..................25
5.10 Distributions Relating to Allowed Insured Claims............................................................25
5.11 Cancellation of Existing Securities.........................................................................25
5.12 Special Procedures for Lost, Stolen, Mutilated or Destroyed Instruments.....................................26
5.13 Allocation of Plan Distributions Between Principal and Interest.............................................26
ARTICLE VI. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.................................................................26
6.1 Assumption or Rejection of Executory Contracts and Unexpired Leases.........................................26
6.2 Indemnification Obligations.................................................................................28
6.3 Compensation and Benefit Programs...........................................................................28
6.4 Retiree Benefits...........................................................................................28
ARTICLE VII. PARTIAL CONSOLIDATION OF THERMADYNE PARENT HOLDINGS AND THE SUBSIDIARIES................................29
7.1 Partial Substantive Consolidation Treatment.................................................................29
7.2 Merger or Dissolution of Corporate Entities.................................................................29
ARTICLE VIII. PROVISIONS REGARDING CORPORATE GOVERNANCE AND MANAGEMENT OF THE REORGANIZED DEBTORS......................29
8.1 General.....................................................................................................29
8.2 Meetings of Stockholders....................................................................................30
8.3 Amended Bylaws and Amended Certificates of Incorporation....................................................30
8.4 Boards of Directors.........................................................................................30
8.5 Officers....................................................................................................31
8.6 Authorization of New Securities.............................................................................31
8.7 Issuance of New Securities..................................................................................31
8.8 Management Stock Plan.......................................................................................33
ARTICLE IX. IMPLEMENTATION AND EFFECT OF CONFIRMATION OF PLAN........................................................33
9.1 Means for Implementation of the Plan........................................................................33
vi
TABLE OF CONTENTS
PAGE
9.2 Effectiveness of Securities, Instruments and Agreements.....................................................33
9.3 Corporate Action............................................................................................33
9.4 Approval of Agreements......................................................................................34
9.5 Cancellation of Existing Securities and Agreements..........................................................34
9.6 Cancellation of Equity Interests............................................................................34
9.7 New Common Stock............................................................................................34
9.8 Listing of New Common Stock.................................................................................34
9.9 Registration Rights Agreement...............................................................................34
9.10 Operation of the Debtors in Possession Between the Confirmation Date and the Effective Date.................34
9.11 Administration After the Effective Date.....................................................................35
9.12 Term of Bankruptcy Injunction or Stays......................................................................35
9.13 Revesting of Assets.........................................................................................35
9.14 Causes of Action............................................................................................35
9.15 Discharge of Debtors........................................................................................35
9.16 Injunction Related to Discharge.............................................................................35
9.17 Injunction Regarding Worthless Stock Deduction..............................................................36
9.18 New Senior Debt Notes.......................................................................................36
9.19 New Working Capital Facility................................................................................37
10.1 Subscription Commitments....................................................................................37
10.2 Subscription Period.........................................................................................37
10.3 Subscription Price..........................................................................................37
10.4 Restructuring Transactions..................................................................................37
10.5 Thresholds..................................................................................................38
10.6 Transfer Restriction; Revocation............................................................................40
10.7 Procedures for Making Subscription Commitments..............................................................40
10.8 Notification of Allocation of New Common Stock..............................................................40
10.9 Submission of Jurisdiction..................................................................................41
10.10 Reservation.................................................................................................41
ARTICLE XI. CONFIRMATION AND EFFECTIVENESS OF THE PLAN...............................................................41
11.1 Conditions Precedent to Confirmation........................................................................41
vii
TABLE OF CONTENTS
PAGE
11.2 Conditions Precedent to Effectiveness.......................................................................41
11.3 Effect of Failure of Conditions.............................................................................43
11.4 Waiver of Conditions........................................................................................43
ARTICLE XII. RETENTION OF JURISDICTION................................................................................43
ARTICLE XIII. MISCELLANEOUS PROVISIONS.................................................................................44
13.1 Effectuating Documents and Further Transactions.............................................................44
13.2 Exemption from Transfer Taxes...............................................................................44
13.3 Authorization to Request Prompt Tax Determinations..........................................................45
13.4 Exculpation.................................................................................................45
13.5 Debtors' Releases...........................................................................................45
13.6 Lender Releases.............................................................................................45
13.7 Injunction Relating to Exculpation and Release..............................................................46
13.8 Reconstitution of Creditors' Committee......................................................................46
13.9 Certain Indenture Trustee Fees and Expenses.................................................................46
13.10 Post-Effective Date Fees and Expenses.......................................................................47
13.11 Payment of Statutory Fees...................................................................................47
13.12 Amendment or Modification of the Plan.......................................................................47
13.13 Severability................................................................................................47
13.14 Revocation or Withdrawal of the Plan........................................................................47
13.15 Binding Effect..............................................................................................48
13.16 Notices.....................................................................................................48
13.17 Governing Law...............................................................................................48
13.18 Withholding and Reporting Requirements......................................................................48
13.19 Plan Supplement.............................................................................................49
13.20 Headings....................................................................................................49
13.21 Exhibits/Schedules..........................................................................................49
13.22 Section 1125(e) of the Bankruptcy Code......................................................................49
13.23 Filing of Additional Documents..............................................................................49
13.24 No Admissions...............................................................................................49
13.25 Inconsistency...............................................................................................50
viii
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
- -------------------------------------------------------
:
In re: : CHAPTER 11
:
THERMADYNE HOLDINGS CORPORATION, :
THERMADYNE MFG. LLC, :
THERMADYNE CAPITAL CORP., :
THERMADYNE INDUSTRIES, INC., :
VICTOR EQUIPMENT COMPANY, : Case No. 01-52840-399
THERMADYNE INTERNATIONAL :
CORPORATION, :
THERMADYNE CYLINDER COMPANY, :
THERMAL DYNAMICS CORPORATION, :
C&G SYSTEMS HOLDING, INC., : JOINTLY ADMINISTERED
MECO HOLDING COMPANY, :
TWECO PRODUCTS, INC., :
TAG REALTY, INC., :
VICTOR COYNE INTERNATIONAL, INC., :
VICTOR GAS SYSTEMS, INC., :
STOODY COMPANY, :
THERMAL ARC, INC., :
C&G SYSTEMS, INC., :
MARISON CYLINDER COMPANY, :
WICHITA WAREHOUSE CORPORATION, :
COYNE NATURAL GAS SYSTEMS, INC., AND :
MODERN ENGINEERING COMPANY, INC., :
:
:
..........Debtors. :
:
- -------------------------------------------------------
DEBTORS' FIRST AMENDED AND RESTATED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Thermadyne Holdings Corporation and its affiliated debtors
(collectively, the "Debtors") propose the following first amended and restated
joint plan of reorganization under section 1121(a) of title 11 of the United
States Code:
ARTICLE I.
DEFINITIONS AND CONSTRUCTION OF TERMS
-------------------------------------
Definitions. As used herein, the following terms have the respective
meanings specified below, unless the context otherwise requires:
1.1 Accredited Investor means any holder of a Note Claim that is an
"accredited investor" as defined under Securities and Exchange Commission
Regulation D.
1.2 Administrative Expense or Administrative Expense Claim means any
right to payment constituting a cost or expense of administration of any of the
Chapter 11 Cases under sections 503(b) and 507(a)(1) of the Bankruptcy Code,
including, without limitation, any Claim arising under or in respect of the DIP
Facility and the DIP Financing Order, any actual and necessary costs and
expenses of preserving the Estates of the Debtors, any actual and necessary
costs and expenses of operating the business of the Debtors in Possession, any
indebtedness or obligations incurred or assumed by the Debtors in Possession in
connection with the conduct of their business, including, without limitation,
for the acquisition or lease of property or an interest in property or the
rendition of services, all compensation and reimbursement of expenses to the
extent Allowed by the Bankruptcy Court under section 330, 331 or 503 of the
Bankruptcy Code, and any fees or charges assessed against the Estates of the
Debtors under section 1930 of title 28 of the United States Code.
1.3 Allowed means, with reference to any Claim, (a) any Claim against
the Debtors which has been listed by the Debtors in their Schedules, as such
Schedules may be amended by the Debtors from time to time in accordance with
Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent and
for which no contrary proof of claim or interest has been filed, (b) any Claim
allowed hereunder, (c) any Claim which is not Disputed, or (d) any Disputed
Claim (i) as to which, pursuant to the Plan or a Final Order of the Bankruptcy
Court, the liability of the Debtors and the amount thereof are to be and have
been determined by a final order of a court of competent jurisdiction other than
the Bankruptcy Court, or (ii) that has been Allowed by a Final Order; provided,
however, that any Claims allowed solely for the purpose of voting to accept or
reject the Plan pursuant to an order of the Bankruptcy Court shall not be
considered "Allowed Claims" hereunder. Unless otherwise specified herein or by
order of the Bankruptcy Court, "Allowed Claim" shall not, for purposes of
computation of distributions under the Plan, include interest on such Claim from
and after the Commencement Date.
1.4 Amended Reorganized Parent Bylaws means the amended and restated
Bylaws of Reorganized Parent, which shall be in substantially the same form as
the bylaws to be contained in the Plan Supplement.
1.5 Amended Reorganized Parent Certificate of Incorporation means the
amended and restated Certificate of Incorporation of Reorganized Parent, which
shall be in substantially the same form as the certificate of incorporation to
be contained in the Plan Supplement.
1.6 Amended Reorganized Subsidiaries Bylaws means the amended and
restated Bylaws of the Reorganized Subsidiaries, which shall be in substantially
the same form as those bylaws to be contained in the Plan Supplement.
1.7 Amended Reorganized Subsidiaries Certificates of Incorporation
means the amended and restated Certificates of Incorporation of the Reorganized
Subsidiaries, which shall be in substantially the same form as the one to be
contained in the Plan Supplement.
2
1.8 Ballot means the form distributed with the Disclosure Statement
to each holder of an impaired Claim entitled to vote to accept or reject the
Plan, on which acceptance or rejection of the Plan and such other elections as
may be made thereon are to be indicated.
1.9 Balloting Agent means the entity retained by the Debtors to
tabulate the votes to accept or reject the Plan.
1.10 Balloting Deadline means the date and time, as set by an order
of the Bankruptcy Court and described in the Disclosure Statement, by which all
Ballots must be received by the Balloting Agent at the address set forth on the
applicable Ballot, as such date may be extended.
1.11 Bankruptcy Code means title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Cases.
1.12 Bankruptcy Court means the United States Bankruptcy Court for
the Eastern District of Missouri, Eastern Division, having jurisdiction over the
Chapter 11 Cases, or if such court ceases to exercise jurisdiction over the
Chapter 11 Cases, such other court that exercises jurisdiction over the Chapter
11 Cases.
1.13 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075 of title 28
of the United States Code, as amended from time to time, and as applicable to
the Chapter 11 Cases.
1.14 Business Day means any day other than a Saturday, Sunday or any
other day on which commercial banks in New York, New York are required or
authorized by law or executive order to close.
1.15 Cash means legal tender of the United States of America.
1.16 Cause of Action means, without limitation, any action, cause of
action, liability, obligation, right, suit, debt, sum of money, damage,
judgment, claim and demand whatsoever, whether known or unknown, in law, equity
or otherwise.
1.17 Chapter 11 Cases means the cases under chapter 11 of the
Bankruptcy Code commenced by the Debtors, styled In re Thermadyne Holdings
Corporation, et al., Chapter 11 Case No. 01-52840-399, Jointly Administered,
currently pending in the Bankruptcy Court.
1.18 Claim has the meaning set forth in section 101(5) of the
Bankruptcy Code.
1.19 Class means a category of holders of Claims or Equity Interests
as set forth in Article III of the Plan.
1.20 Clerk means the Clerk of the Bankruptcy Court.
1.21 Collateral means any property or interest in property of the
Estates of the Debtors subject to a Lien to secure the payment or performance of
3
a Claim, which Lien is not subject to avoidance under the Bankruptcy Code or
otherwise is invalid under the Bankruptcy Code or applicable state law.
1.22 Commencement Date means November 19, 2001, the date on which the
Debtors commenced the Chapter 11 Cases.
1.23 Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the Docket.
1.24 Confirmation Hearing means the hearing held by the Bankruptcy
Court to consider confirmation of the Plan pursuant to section 1129 of the
Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
1.25 Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.26 Creditors' Committee means the statutory committee of unsecured
creditors appointed in the Chapter 11 Cases pursuant to section 1102 of the
Bankruptcy Code.
1.27 Debtors means Thermadyne Holdings, Thermadyne Mfg. LLC,
Thermadyne Capital Corp., Thermadyne Industries, Inc., Victor Equipment Company,
Thermadyne International Corporation, Thermadyne Cylinder Company, Thermal
Dynamics Corporation, C&G Systems Holding, Inc., Meco Holding Company, Tweco
Products, Inc., TAG Realty, Inc., Victor Coyne International, Inc., Victor Gas
Systems, Inc., Stoody Company, Thermal Arc, Inc., C&G Systems, Inc., Marison
Cylinder Company, Wichita Warehouse Corporation, Coyne Natural Gas Systems,
Inc., and Modern Engineering Company, Inc.
1.28 Debtors in Possession means the Debtors in their capacity as
debtors in possession in the Chapter 11 Cases pursuant to sections 1101, 1107(a)
and 1108 of the Bankruptcy Code.
1.29 DIP Agent means ABN AMRO Bank N.V., as administrative and
collateral agent under the DIP Facility.
1.30 DIP Facility means that certain revolving credit facility in the
aggregate principal amount of up to $60 million with a sublimit of $15 million
for standby letters of credit, and evidenced by that certain Revolving Credit
and Guaranty Agreement among Thermadyne Mfg. LLC, as borrower, the other
Debtors, as guarantors, ABN AMRO Bank N.V., as administrative and collateral
agent, and the lenders from time to time party thereto, dated as of November 26,
2001, as amended, supplemented, or modified from time to time, and all other
documents and instruments evidencing and/or setting forth the terms of the
debtor in possession financing arrangements in the Chapter 11 Cases, as approved
by the DIP Financing Order.
1.31 DIP Financing Order means the Order of the Bankruptcy Court
dated November 21, 2001 (as amended) approving and authorizing the terms of the
DIP Facility in the Chapter 11 Cases.
4
1.32 DIP Lender means any lending institution from time to time party
to the DIP Facility, and its successors and assigns.
1.33 DIP Letters of Credit means all letters of credit issued
pursuant to the DIP Facility and outstanding as of the Effective Date.
1.34 Disbursing Agent means the Reorganized Debtors or Persons
identified in Section 5.4 or Section 5.7 of the Plan to serve as a disbursing
agent under the Plan.
1.35 Disclosure Statement means the disclosure statement relating to
the Plan, including, without limitation, all exhibits and schedules thereto, as
approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code.
1.36 Disputed means, with reference to any Claim or Equity Interest,
any Claim or Equity Interest proof of which was timely and properly filed and
which has been or hereafter is listed on the Schedules as unliquidated, disputed
or contingent, and in either case or in the case of an Administrative Expense
Claim, any Administrative Expense Claim, Claim or Equity Interest which is
disputed under the Plan or as to which the Debtors or, if not prohibited by the
Plan, any other party in interest has interposed a timely objection and/or
request for estimation in accordance with section 502(c) of the Bankruptcy Code
and Bankruptcy Rule 3018, which objection and/or request for estimation has not
been withdrawn or determined by a Final Order, and any Claim or Equity Interest
proof of which was required to be filed by order of the Bankruptcy Court but as
to which a proof of claim or interest was not timely or properly filed.
1.37 Disputed Claim Amount means the amount set forth in the proof of
claim relating to a Disputed Claim or, if an amount is estimated in respect of a
Disputed Claim in accordance with section 502(c) of the Bankruptcy Code and
Bankruptcy Rule 3018 or other applicable law for purposes of, among other
things, Section 5.5 of the Plan, the amount so estimated pursuant to an order of
the Bankruptcy Court.
1.38 Distribution Record Date means the first Business Day after five
(5) days after the Confirmation Date.
1.39 Docket means the docket in the Chapter 11 Cases maintained by
the Clerk.
1.40 Effective Date means the first Business Day on which the
conditions specified in Section 11.2 of the Plan have been satisfied or waived
pursuant to Section 11.4 of the Plan.
1.41 Environmental Claim means any Claim, including, but not limited
to, actions, suits, judgments, or orders under any federal, state, or local
environmental law, rule, or regulation for any damages (including contribution
claims and natural resource damages), injunctive relief, remediation, losses,
fines, penalties, fees, expenses (including financial assurance obligations and
reasonable fees and expenses of attorneys and consultants) or costs relating to
(a) the release or threatened release of hazardous materials or substances to
the environment, (b) any actual or alleged violation or non-compliance with any
applicable federal, state, or local environmental statute, rule, regulation, or
5
order, or (c) other similar Claim asserted against any of the Debtors that has
not been compromised and settled or otherwise resolved.
1.42 Equity Interest means any share of preferred stock, common stock
or other instrument evidencing an ownership interest in any of the Debtors,
whether or not transferable, and any option, warrant or right, contractual or
otherwise, to acquire any such interest.
1.43 Estates means the estates created upon the commencement of the
Chapter 11 Cases pursuant to section 541 of the Bankruptcy Code.
1.44 Exchange Act means the Securities Exchange Act of 1934, as
amended.
1.45 Exculpated Parties has the meaning set forth in Section 13.4 of
the Plan.
1.46 Existing Credit Facility means the Credit Agreement dated as of
May 22, 1998, entered into by and among Thermadyne Mfg. LLC, Comweld Group Pty.
Ltd., GenSet S.P.A., and Thermadyne Welding Products Canada Limited, as
borrowers, the Senior Secured Lenders, Credit Suisse First Boston as Syndication
Agent, Societe Generale as documentation agent, and ABN AMRO Bank N.V. as
administrative agent, as amended from time to time, and guaranteed by certain
subsidiaries of Thermadyne Mfg. LLC pursuant to the Subsidiary Co-Obligation
Agreement and Guaranty dated as of May 22, 1998, and secured by a lien on
substantially all the assets of such subsidiaries.
1.47 Final Order means an order or judgment of the Bankruptcy Court
as to which the time to appeal, petition for certiorari, or move for reargument
or rehearing has expired and as to which no appeal, petition for certiorari, or
other proceedings for reargument or rehearing shall then be pending or as to
which any right to appeal, petition for certiorari, reargue, or rehear shall
have expired or been waived in writing in form and substance satisfactory to the
Debtors or the Reorganized Debtors or, in the event that an appeal, writ of
certiorari, or reargument or rehearing thereof has been sought, such order or
judgment of the Bankruptcy Court shall have expired or been determined by the
highest court to which such order was appealed, or certiorari, reargument or
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous Bankruptcy Rules, may
be filed with respect to such order or judgment shall not cause such order not
to be a Final Order.
1.48 General Unsecured Claim means any Claim that is not a Secured
Claim, Administrative Expense Claim, Priority Tax Claim, Other Priority Claim,
or Note Claim.
1.49 Holdback Amount has the meaning set forth in Section 5.5(a) of
the Plan.
1.50 Indenture Trustee means State Street Bank and Trust Company, in
its capacity as the 9 7/8% Senior Subordinated Notes Indenture Trustee; Chemical
Bank in its capacity as the 10.75% Senior Subordinated Notes Indenture Trustee;
and HSBC Bank USA, successor to IBJ Schroder Bank & Trust Company, in its
capacity as the 12 1/2% Senior Discount Debentures Indenture Trustee, unless
such indenture trustee shall have resigned or been replaced by a successor
trustee, in which case said term shall refer to the successor.
6
1.51 Initial Distribution Date means the date that is no more than
sixty (60) days after the Effective Date.
1.52 Insured Claim means any Claim arising from an incident or
occurrence that is covered under the Debtors' insurance policies.
1.53 Junior Subordinated Notes means the $25 million aggregate face
amount of Junior Subordinated Notes due 2009 issued by Thermadyne Mfg. LLC on
December 22, 1999.
1.54 Junior Subordinated Notes Claim means any Claim based on or
related to the Junior Subordinated Notes.
1.55 LIBOR shall have substantially the same meaning that "LIBO Rate"
has under the Existing Credit Facility.
1.56 Lien has the meaning set forth in section 101(37) of the
Bankruptcy Code.
1.57 Management Stock Plan means an equity incentive plan that will
become effective on the Effective Date or as soon thereafter as is reasonably
practicable, which shall be in substantially the same form as the one to be
contained in the Plan Supplement.
1.58 New Board of Directors means the board of directors of
Reorganized Parent on the Effective Date.
1.59 New Common Stock means (i) in respect of the Newco Offering, the
new common stock to be issued by Newco pursuant to the Plan and the Amended and
Restated Certificate of Incorporation of Newco and (ii) in the event the Newco
Offering is not consummated, the new common stock to be issued by Thermadyne
Holdings pursuant to the Plan and the Amended and Restated Certificate of
Incorporation of Thermadyne Holdings.
1.60 New Senior Debt Notes means the new senior debt notes described
in Section 9.18 of the Plan to be issued pursuant to the New Senior Debt Notes
Agreement.
1.61 New Senior Debt Notes Agreement means the agreement pursuant to
which the New Senior Debt Notes will be issued, and which shall be in
substantially the same form as the agreement to be contained in the Plan
Supplement.
1.62 New Senior Debt Notes Documents means the collective reference
to the New Senior Debt Notes, the New Senior Debt Notes Agreement, all exhibits
thereto and any and all other documents or instruments created, executed or
issued pursuant to or in connection therewith.
1.63 New Series A Warrant Agreement means the warrant agreement
governing the issuance and exercise of the New Series A Warrants. The New Series
A Warrant Agreement will be in substantially the same form as the one to be
contained in the Plan Supplement.
7
1.64 New Series A Warrants means the warrants to purchase 1,157,000
shares of New Common Stock to be issued pursuant to, and exercisable in
accordance with, the New Series A Warrant Agreement, which warrants shall expire
on the first anniversary of the Effective Date, and which shall be exercisable
for a payment to Reorganized Parent of $13.85 in cash per share of New Common
Stock.
1.65 New Series B Warrant Agreement means the warrant agreement
governing the issuance and exercise of the New Series B Warrants. The New Series
B Warrant Agreement will be in substantially the same form as the one to be
contained in the Plan Supplement.
1.66 New Series B Warrants means the warrants to purchase 700,000
shares of New Common Stock to be issued pursuant to, and exercisable in
accordance with, the New Series B Warrant Agreement, which warrants shall expire
on the third anniversary of the Effective Date, and which shall be exercisable
for a payment to Reorganized Parent of $20.78 in cash per share of New Common
Stock.
1.67 New Series C Warrant Agreement means the warrant agreement
governing the issuance and exercise of the New Series C Warrants. The New Series
C Warrant Agreement will be in substantially the same form as the one to be
contained in the Plan Supplement.
1.68 New Series C Warrants means the warrants to purchase 271,429
shares of New Common Stock to be issued pursuant to, and exercisable in
accordance with, the New Series C Warrant Agreement, which warrants shall expire
on the third anniversary of the Effective Date, and which shall be exercisable
for a payment to Reorganized Parent of $27.70 in cash per share of New Common
Stock.
1.69 New Warrant Agreements means the New Series A Warrant Agreement,
the New Series B Warrant Agreement and the New Series C Warrant Agreement.
1.70 New Warrants means the New Series A Warrants, the New Series B
Warrants and the New Series C Warrants.
1.71 New Working Capital Facility means the working capital facility
to be entered into by Reorganized Parent, the Reorganized Subsidiaries, the
banks and other financial institutions party thereto in connection with the
consummation of the Plan, upon terms and conditions to be mutually agreed, and
all auxiliary agreements, documents and instruments to be created, executed or
issued pursuant to or in connection therewith.
1.72 New Working Capital Facility Lenders means those certain lenders
(together with their successors or assigns), that are parties to the New Working
Capital Facility, by original execution or assignment thereof.
1.73 Newco means a corporation formed for the purpose of effecting
the Plan in the event the Newco Offering is consummated.
8
1.74 Newco Acquisition means the acquisition by Newco of all of the
capital stock of Thermadyne Industries, Inc. as contemplated in Article X of the
Plan.
1.75 Newco Offering means the offering of the New Common Stock as
described in Article X of the Plan.
1.76 Newco Offering Maximum means 12,318,500 shares of New Common
Stock.
1.77 Newco Offering Minimum means 10,683,225 shares of New Common
Stock, provided however, that, if, as a result of the Newco Offering, any Person
or related group for purposes of Section 13(d) of the Exchange Act, together
with any affiliates thereof, would become the beneficial owners (within the
meaning of Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of Newco representing at least 30% of the shares of New Common Stock
to be distributed pursuant to the Plan, the Newco Offering Minimum shall mean
12,318,500 shares of New Common Stock, unless more than 50% of the Senior
Secured Lenders (based on their Senior Secured Lender Claims) have otherwise
agreed in writing.
1.78 9 7/8% Senior Subordinated Notes means the $207 million
aggregate face amount of 9 7/8% Senior Subordinated Notes due 2008 under an
Indenture dated May 22, 1998 among Thermadyne Mfg. LLC and Thermadyne Capital
Corp., as issuers, and State Street Bank and Trust Company, as trustee, and C&G
Systems Holding, Inc., C&G Systems, Inc., Coyne Natural Gas Systems, Inc.,
Marison Cylinder Company, MECO Holding Company, Modern Engineering Company,
Inc., Stoody Company, TAG Realty, Inc., Thermadyne Cylinder Company, Thermadyne
Industries, Inc., Thermadyne International Corporation, Thermal Arc, Inc.,
Thermal Dynamics Corporation, Tweco Products, Inc., Victor Coyne International,
Inc., Victor Equipment Company, Wichita Warehouse Corporation, and Woodland
Cryogenics Company, as guarantors.
1.79 9 7/8% Senior Subordinated Notes Claim means any Claim relating
to the 9 7/8% Senior Subordinated Notes.
1.80 Note Claim means any 9 7/8% Senior Subordinated Notes Claim,
10.75% Senior Subordinated Notes Claim, 12 1/2% Senior Discount Debentures
Claim, or Junior Subordinated Notes Claim.
1.81 Other Priority Claim means any Claim, other than an
Administrative Expense Claim or a Priority Tax Claim, entitled to priority in
right of payment under section 507(a) of the Bankruptcy Code.
1.82 Other Secured Claim means any Secured Claim other than a Senior
Secured Lender Claim.
1.83 Other Subsidiary Equity Interest means any share of preferred
stock, common stock or other instrument evidencing an ownership interest in any
of the Subsidiaries, whether or not transferable, and any option, warrant or
right, contractual or otherwise, to acquire any such interest, other than a
Subsidiary Equity Interest.
9
1.84 Oversubscribed Shares means the shares of New Common Stock in
excess of an Accredited Investor's Pro Rata Share (determined on the basis of
such Accredited Investor's single Class of Claims) subscribed for pursuant to
such Accredited Investor's Subscription Agreement.
1.85 Person means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated association or
organization, governmental agency or political subdivision thereof.
1.86 Plan means this chapter 11 plan of reorganization, including,
without limitation, the Plan Supplement and all exhibits, supplements,
appendices and schedules hereto, either in its present form or as the same may
be altered, amended or modified from time to time in accordance with the terms
hereof or approved by the Bankruptcy Court.
1.87 Plan Documents means the agreements, documents and instruments
entered into or issued on or as of the Effective Date as contemplated by, and in
furtherance of, the Plan, including without limitation, the agreements,
documents and instruments described in Section 13.19 of the Plan.
1.88 Plan Supplement means the forms of documents specified in
Section 13.19 of the Plan.
1.89 Prepetition Agent means ABN AMRO Bank N.V., as administrative
and collateral agent under the Existing Credit Facility.
1.90 Priority Tax Claim means any Claim of a governmental unit of the
kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.91 Pro Rata Share means a proportionate share, such that the ratio
of the consideration distributed on account of an Allowed Claim or Allowed
Equity Interest in a Class to the amount of the consideration distributed on
account of all Allowed Claims or Allowed Equity Interests in such Class is the
same as the ratio of the amount of such Allowed Claim or Allowed Equity Interest
to the amount of all Allowed Claims or Allowed Equity Interests in that Class.
1.92 Professional means (a) any professional employed in the Chapter
11 Cases pursuant to section 327 or 1103 of the Bankruptcy Code or otherwise
pursuant to an order of the Bankruptcy Court and (b) any professional or other
entity seeking compensation or reimbursement of expenses in connection with the
Chapter 11 Cases pursuant to section 503(b)(3) or (4) of the Bankruptcy Code.
1.93 Quarter means the period beginning on the Effective Date and
ending on the next following November 30, February 28, May 31 or August 31,
whichever occurs first, and each three month period occurring thereafter.
1.94 Reconstituted Committee has the meaning set forth in Section
13.8 of the Plan.
10
1.95 Reconstituted Committee Compensation means the maximum amount
that the Reorganized Debtors will reimburse the Reconstituted Committee for the
expenses of its member and the fees and expenses of local counsel for the
Reconstituted Committee to perform the services described in Section 13.8 of the
Plan, which amount shall be $15,000.
1.96 Registration Rights Agreement means the registration rights
agreement relating to the New Common Stock distributed pursuant to the Plan, to
be entered into as of the Effective Date by the Reorganized Debtors for the
benefit of certain holders of New Common Stock, which agreement shall be
substantially in the same form as the one to be contained in the Plan
Supplement.
1.97 Reorganized Debtors means each of Reorganized Parent and the
Reorganized Subsidiaries.
1.98 Reorganized Parent means (i) in the event the Newco Offering and
the Newco Acquisition are consummated, Newco, and (ii) in the event Newco
Offering is not consummated, Thermadyne Holdings, or, in either case, any
successor thereto by merger, consolidation or otherwise, on and after the
Effective Date.
1.99 Reorganized Subsidiaries means each of the Subsidiaries, or any
successors thereto by merger, consolidation or otherwise, on and after the
Effective Date.
1.100 Schedules means the schedules of assets and liabilities, the
list of holders of Equity Interests and the statements of financial affairs
filed by the Debtors under section 521 of the Bankruptcy Code and Bankruptcy
Rule 1007, and all amendments and modifications thereto through the Confirmation
Date.
1.101 Secured Claim means any Claim, to the extent reflected in the
Schedules or a proof of claim as a Secured Claim, payment or performance of
which is secured by a Lien on Collateral to the extent of the value of such
Collateral, as determined in accordance with section 506(a) of the Bankruptcy
Code, including, in the event that such Claim is subject to setoff under section
553 of the Bankruptcy Code, to the extent of the amount of such setoff.
1.102 Securities Act means the federal Securities Act of 1933, as
amended.
1.103 Senior Secured Lender Claim means any Claim of a Senior Secured
Lender arising under the Existing Credit Facility.
1.104 Senior Secured Lenders means any lending institution from time
to time party to the Existing Credit Facility and its successors and assigns.
1.105 Shelf Registration Statement means the registration statement
to be filed pursuant to the Registration Rights Agreement.
1.106 Stock Purchase Agreement means the stock purchase agreement
pursuant to which Newco shall acquire all of the shares of Thermadyne
Industries, Inc. in the event that the Newco Offering is consummated, which
stock purchase agreement shall be in substantially the same form as the stock
purchase agreement to be contained in the Plan Supplement.
11
1.107 Subscription means an Accredited Investor's subscription for
shares of New Common Stock pursuant to the Newco Offering.
1.108 Subscription Agent means the Person engaged by the Debtors to
conduct the Newco Offering.
1.109 Subscription Agreement means the agreement to be executed by
holders of Note Claims that are Accredited Investors pursuant to which such
holders may subscribe for the purchase of shares of New Common Stock pursuant to
the Newco Offering, which agreement shall be substantially in the same form as
the one to be contained in the Plan Supplement.
1.110 Subscription Commencement Date means the first Business Day
after ten (10) days after the Confirmation Date.
1.111 Subscription Commitment means the binding commitment of an
Accredited Investor to acquire shares of New Common Stock pursuant to the Newco
Offering.
1.112 Subscription Date means the date on or prior to the
Subscription Expiration Date on which a Subscription Commitment has been made.
1.113 Subscription Expiration Date means the first Business Day that
is thirty (30) days after the Subscription Commencement Date.
1.114 Subscription Price means the price to be paid for shares of New
Common Stock pursuant to the Newco Offering.
1.115 Subscription Price Deposit has the meaning set forth in Section
10.7 of the Plan.
1.116 Subsequent Distribution Date means the twentieth day after the
end of the second Quarter following the Quarter in which the Initial
Distribution Date occurs and the twentieth day after the end of each subsequent
Quarter; provided, however, that the second Subsequent Distribution Date shall
occur on the twentieth day after the end of the third Quarter following the
Quarter in which the Initial Distribution Date occurs.
1.117 Subsidiary means any Debtor of which Thermadyne Holdings owns
directly or indirectly all of the outstanding capital stock.
1.118 Subsidiary Equity Interest means any share of stock or other
instrument evidencing a present ownership interest by any of the Debtors in any
of the Subsidiaries, whether or not transferable, and any option, warrant or
right, contractual or otherwise, to acquire any such interest.
1.119 Surplus Distributions has the meaning set forth in Section
5.5(c) of the Plan.
1.120 Tax Code means the Internal Revenue Code of 1986, as amended.
12
1.121 10.75% Senior Subordinated Notes means the $179 million
aggregate face amount of Senior Subordinated Notes due 2003 under an Indenture
dated February 1, 1994 between Thermadyne Holdings and Chemical Bank, as
trustee.
1.122 10.75% Senior Subordinated Notes Claim means any Claim relating
to the 10.75% Senior Subordinated Notes.
1.123 Thermadyne Holdings means Thermadyne Holdings Corporation, a
Delaware corporation.
1.124 Thermadyne Holdings Equity Interest means, collectively, (i)
any share of preferred stock, common stock or other instrument evidencing an
ownership interest in Thermadyne Holdings, whether or not transferable, and any
option, warrant or right, contractual or otherwise, to acquire any such interest
and (ii) any Claim under applicable law, whether or not such Claim is listed on
the Schedules or evidenced by a filed proof of claim, whether or not the subject
of an existing lawsuit, arising from or seeking the rescission of a purchase or
sale of equity of the Debtors or any affiliate of the Debtors, for damages
arising from the purchase or sale of a security, or for reimbursement,
indemnification or contribution allowed under section 502 of the Bankruptcy Code
on account of such a Claim as provided in section 510(b) of the Bankruptcy Code.
1.125 Tort Claim means any Claim relating to personal injury,
property damage (other than an Environmental Claim), products liability, or
other similar Claim asserted against any of the Debtors that has not been
compromised and settled or otherwise resolved.
1.126 12 1/2% Senior Discount Debentures means the $94.6 million
aggregate face amount of 12-1/2% Senior Discount Notes due at 2008 under an
Indenture dated May 22, 1998 between Thermadyne Holdings, as successor to
Mercury Acquisition Company, and HSBC Bank USA, successor to IBJ Schroder Bank &
Trust Company, as trustee.
1.127 12 1/2% Senior Discount Debentures Claim means any Claim
relating to the 12 1/2% Senior Discount Debentures.
1.128 Interpretation; Application of Definitions and Rules of
Construction. Wherever from the context it appears appropriate, each term stated
in either the singular or the plural shall include both the singular and the
plural and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter. Unless otherwise specified, all
section, article, schedule or exhibit references in the Plan are to the
respective Section in, Article of, Schedule to, or Exhibit to, the Plan. The
words "herein," "hereof," "hereto," "hereunder" and other words of similar
import refer to the Plan as a whole and not to any particular section,
subsection or clause contained in the Plan. The rules of construction contained
in section 102 of the Bankruptcy Code shall apply to the construction of the
Plan. A term used herein that is not defined herein, but that is used in the
Bankruptcy Code, has the meaning ascribed to that term in the Bankruptcy Code.
13
ARTICLE II.
TREATMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Expense Claims. Except to the extent that any
entity entitled to payment of any Allowed Administrative Expense Claim agrees to
a different treatment, each holder of an Allowed Administrative Expense Claim
shall receive Cash in an amount equal to such Allowed Administrative Expense
Claim on the later of the Effective Date and the date such Administrative
Expense Claim becomes an Allowed Administrative Expense Claim, or as soon
thereafter as is practicable; provided, however, that Allowed Administrative
Expense Claims representing liabilities incurred in the ordinary course of
business by the Debtors in Possession or liabilities arising under loans or
advances to or other obligations incurred by the Debtors in Possession, to the
extent authorized and approved by the Bankruptcy Court if such authorization and
approval was required under the Bankruptcy Code, shall be paid in full and
performed by the responsible Reorganized Debtor in the ordinary course of
business in accordance with the terms and subject to the conditions of any
agreements governing, instruments evidencing, or other documents relating to
such transactions; provided further, however, that on the Effective Date, all of
the obligations of the Debtors to the DIP Agent and the DIP Lenders under or in
respect of the DIP Facility and the DIP Financing Order shall be indefeasibly
paid in full in Cash, the commitments under the DIP Facility shall be
terminated, and all DIP Letters of Credit shall either (a) be (i) returned to
the issuer undrawn and marked cancelled, or (ii) cash collateralized with Cash
in an amount equal to 105% of the face amount of the outstanding DIP Letters of
Credit, or (b) the issuer will be provided with back-to-back letters of credit
in an amount equal to 105% of the face amount of the outstanding DIP Letters of
Credit, and in form and substance and from a financial institution acceptable to
the issuer.
2.2 Professional Compensation and Reimbursement Claims. All entities
seeking an award by the Bankruptcy Court of compensation for services rendered
or reimbursement of expenses incurred through and including the Effective Date
under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy
Code (a) shall file their respective final applications for allowances of
compensation for services rendered and reimbursement of expenses incurred
through the Effective Date by the date that is sixty (60) days after the
Effective Date or such other date as may be fixed by the Bankruptcy Court and,
(b) if granted such an award by the Bankruptcy Court, shall be paid in full in
such amounts as are Allowed by the Bankruptcy Court (i) on the date such
Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or
as soon thereafter as is practicable or (ii) upon such other terms as may be
mutually agreed upon between such holder of an Administrative Expense Claim and
the Debtors in Possession or, on and after the Effective Date, the Reorganized
Debtors.
2.3 Priority Tax Claims. Except to the extent that a holder of an
Allowed Priority Tax Claim has been paid by the Debtors prior to the Effective
Date or agrees to a different treatment, each holder of an Allowed Priority Tax
Claim shall receive, at the sole option of the Reorganized Debtors, (a) Cash in
an amount equal to such Allowed Priority Tax Claim on the later of the Effective
Date and the date such Priority Tax Claim becomes an Allowed Priority Tax Claim,
or as soon thereafter as is practicable, or (b) equal annual Cash payments in an
aggregate amount equal to such Allowed Priority Tax Claim (commencing on the
first anniversary of the Effective Date), together with interest at a fixed
14
annual rate equal to 4.75%, over a period through a date not later than the
sixth anniversary of the date of assessment of such Allowed Priority Tax Claim,
or upon such other terms determined by the Bankruptcy Court to provide the
holder of such Allowed Priority Tax Claim deferred Cash payments having a value,
as of the Effective Date, equal to such Allowed Priority Tax Claim.
ARTICLE III.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
---------------------------------------------
Claims, other than Administrative Expense Claims and Priority Tax
Claims, and Equity Interests are classified for all purposes, including voting,
confirmation and distribution pursuant to the Plan, as follows:
Class Status
----- ------
Class 1 - Other Priority Claims.............................Unimpaired
Class 2 - Senior Secured Lender Claims......................Impaired
Class 3 - Other Secured Claims..............................Unimpaired
Class 4 - General Unsecured Claims..........................Impaired
Class 5 - 9 7/8% Senior Subordinated Notes Claims...........Impaired
Class 6 - Junior Subordinated Notes Claims..................Impaired
Class 7 - 10.75% Senior Subordinated Notes Claims...........Impaired
Class 8 - 12 1/2% Senior Discount Debenture Claims..........Impaired
Class 9 - Thermadyne Holdings Equity Interests
and Other Subsidiary Equity Interests.........Impaired
Class 10 - Subsidiary Equity Interests......................Unimpaired
ARTICLE IV
TREATMENT OF CLAIMS AND EQUITY INTERESTS
----------------------------------------
The Classes of Claims against and Equity Interests in the Debtors
shall be treated under the Plan as follows:
4.1 CLASS 1 - OTHER PRIORITY CLAIMS.
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each
holder of an Allowed Other Priority Claim is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
15
(b) Distributions. Each holder of an Allowed Other Priority Claim
shall receive Cash in an amount equal to the amount of such Allowed Other
Priority Claim on the later of the Effective Date and the date such Allowed
Other Priority Claim becomes an Allowed Other Priority Claim, or as soon
thereafter as is practicable.
4.2 CLASS 2 - SENIOR SECURED LENDER CLAIMS.
(a) Impairment and Voting. Class 2 is impaired by the Plan. Each
holder of an Allowed Senior Secured Lender Claim is entitled to vote to accept
or reject the Plan.
(b) Distributions. On the Effective Date and in accordance with the
restructuring transactions described in Section 10.4, each holder of an Allowed
Senior Secured Lender Claim shall receive on account of its Allowed Senior
Secured Lender Claim the following consideration:
(i) Cash in the amount of any accrued and unpaid interest, fees
and expenses in respect of such Allowed Senior Secured Lender Claim
(including, without limitation, letter of credit fees, cash management
fees, overdraft payments and all reasonable out-of-pocket expenses and
counsel and other advisory fees and expenses),
(ii) its Pro Rata Share of $180,000,000 in aggregate principal
amount of New Senior Debt Notes,
(iii) its Pro Rata share of 250,000 shares of New Common Stock,
(iv) either:
(x) if the Newco Offering Minimum has not been satisfied,
its Pro Rata Share of 12,318,500 shares of New Common Stock, or
(y) if the Newco Offering Minimum has been satisfied, (1)
Cash in an amount equal to its Pro Rata Share of the Cash
received from the issuance of New Common Stock pursuant to the
Newco Offering, and (2) at the election of the holder of such
Allowed Senior Secured Lender Claim made pursuant to Section
4.2(c), either (A) its Pro Rata Share of the shares of New Common
Stock not subscribed for pursuant to the Newco Offering, or (B)
additional New Senior Debt Notes in an aggregate amount equal to
the product of (I) the number of shares of New Common Stock to
which such holder would have been entitled pursuant to the
preceding clause (A), multiplied by (II) the Subscription Price,
and
(v) its Pro Rata Share of 271,429 New Series C Warrants, subject,
however, to the transfer of such warrants as provided in Section
4.9(b) hereof.
(c) Election by Holders of Class 2 Claims. On or before ten (10)
Business Days after the Subscription Expiration Date, the Debtors will serve on
each holder of a Class 2 Claim as of the Distribution Record Date a notice
16
advising such holder of the number of shares of New Common Stock that have been
subscribed pursuant to Article X hereof and a form for such holder to elect
treatment under Section 4.2(b)(iv)(y)(2) hereof. Such holder shall have ten (10)
Business Days from the date of such notice to return its election form to the
Debtors. Such holder's failure to return the election form timely shall be
deemed an election for treatment pursuant to Section 4.2(b)(iv)(y)(2)(B) hereof.
(d) Outstanding Letters of Credit. On the Effective Date, with
respect to outstanding letters of credit issued under the Existing Credit
Facility, (x) such letters of credit will be returned to the issuer undrawn and
marked cancelled, or (y) the issuer will be provided with (1) cash collateral in
an amount equal to 105% of the face amount of the outstanding letters of credit
or (2) back-to-back letters of credit in an amount equal to 105% of the face
amount of the outstanding letters of credit, in form and substance and from an
institution acceptable to the issuer.
4.3 CLASS 3 - OTHER SECURED CLAIMS.
(a) Impairment and Voting. Class 3 is unimpaired by the Plan. Each
holder of an Allowed Other Secured Claim is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. Except to the extent that
a holder of an Allowed Other Secured Claim agrees to a different treatment, at
the sole option of the Reorganized Debtors, (i) each Allowed Other Secured Claim
shall be reinstated and rendered unimpaired in accordance with section 1124(2)
of the Bankruptcy Code, notwithstanding any contractual provision or applicable
nonbankruptcy law that entitles the holder of an Allowed Other Secured Claim to
demand or receive payment of such Allowed Other Secured Claim prior to the
stated maturity of such Allowed Other Secured Claim from and after the
occurrence of a default, or (ii) each holder of an Allowed Other Secured Claim
shall receive Cash in an amount equal to such Allowed Other Secured Claim,
including any interest on such Allowed Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, on the later of the Effective
Date and the date such Allowed Other Secured Claim becomes an Allowed Other
Secured Claim, or as soon thereafter as is practicable, or (iii) the holder of
an Allowed Other Secured Claim shall receive possession of the Collateral
securing its Allowed Other Secured Claim in full and complete satisfaction of
such Allowed Other Secured Claim on the later of the Effective Date and the date
such Allowed Other Secured Claim becomes an Allowed Other Secured Claim, or as
soon thereafter as is practicable. Notwithstanding the foregoing, each such
holder receiving the treatment specified in clause (ii) or (iii) of the
preceding sentence shall have a General Unsecured Claim in Class 4 for the
amount by which the amount of its Allowed Claim exceeds the value of its
Collateral.
4.4 CLASS 4 - GENERAL UNSECURED CLAIMS.
(a) Impairment and Voting. Class 4 is impaired by the Plan. Each
holder of an Allowed General Unsecured Claim is entitled to vote to accept or
reject the Plan.
17
(b) Distributions.
(i) On the Initial Distribution Date or as soon thereafter as is
practicable, each holder of an Allowed General Unsecured Claim shall
receive, on account of such holder's Allowed General Unsecured Claim,
Cash equal to the lesser of (1) such holder's Pro Rata Share of
$7,500,000, less the Holdback Amount and (2) fifty percent (50%) of
such holder's Allowed Claim.
(ii) On each Subsequent Distribution Date, subject to Section
5.5(c) of the Plan, each holder of an Allowed General Unsecured Claim
shall receive a Pro Rata Share of the Surplus Distributions of Cash;
provided that the aggregate of such distributions together with
distributions pursuant to Section 4.4(b)(i) hereof shall not exceed
fifty percent (50%) of such holder's Allowed Claim.
4.5 CLASS 5 - 9 7/8% SENIOR SUBORDINATED NOTES CLAIMS.
(a) Impairment and Voting. Class 5 is impaired by the Plan. Each
holder of an Allowed 9 7/8% Senior Subordinated Notes Claim is entitled to vote
to accept or reject the Plan.
(b) Distributions.
(i) On the Initial Distribution Date or as soon thereafter as is
practicable, each holder of an Allowed 9 7/8% Senior Subordinated
Notes Claim shall receive, on account of such holder's Allowed 9 7/8%
Senior Subordinated Notes Claim, such holder's Pro Rata Share of
731,500 shares of New Common Stock;
(ii) On the Initial Distribution Date or as soon thereafter as is
practicable, each holder of an Allowed 9 7% Senior Subordinated Notes
Claim shall receive, on account of such holder's Allowed 9 7/8% Senior
Subordinated Notes Claim, such holder's Pro Rata Share of (x)
1,157,000 New Series A Warrants and (y) 700,000 New Series B Warrants.
(iii) From and after the Subscription Commencement Date, each
holder of an Allowed 9 7/8% Senior Subordinated Notes Claim that is an
Accredited Investor shall also be entitled to subscribe for shares of
New Common Stock pursuant to the Newco Offering described in Article X
hereof.
4.6 CLASS 6 - JUNIOR SUBORDINATED NOTES CLAIMS.
(a) Impairment and Voting. Class 6 is impaired by the Plan. Each
holder of an Allowed Junior Subordinated Notes Claim is conclusively presumed to
have rejected the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. The holders of Junior Subordinated Notes Claims
shall receive no distributions on account of such holders' Allowed Junior
Subordinated Notes Claim. From and after the Subscription Commencement Date,
each holder of an Allowed Junior Subordinated Notes Claim that is an Accredited
18
Investor shall be entitled to subscribe for shares of New Common Stock pursuant
to the Newco Offering described in Article X hereof.
4.7 CLASS 7 - 10.75% SENIOR SUBORDINATED NOTES CLAIMS.
(a) Impairment and Voting. Class 7 is impaired by the Plan. Each
holder of an Allowed 10.75% Senior Subordinated Notes Claim is conclusively
presumed to have rejected the Plan and is not entitled to vote to accept or
reject the Plan.
(b) Distributions. The holders of 10.75% Senior Subordinated Notes
Claims shall receive no distribution on account of such holders' Allowed 10.75%
Senior Subordinated Notes Claims. From and after the Subscription Commencement
Date, each holder of an Allowed 10.75% Senior Subordinated Notes Claim that is
an Accredited Investor shall be entitled to subscribe for shares of New Common
Stock pursuant to the Newco Offering described in Article X.
4.8 CLASS 8 - 12 1/2% SENIOR DISCOUNT DEBENTURE CLAIMS.
(a) Impairment and Voting. Class 8 is impaired by the Plan. Each
holder of an Allowed 12 1/2% Senior Discount Debenture Claim is conclusively
presumed to have rejected the Plan and is not entitled to vote to accept or
reject the Plan.
(b) Distributions. The holders of 12 1/2% Senior Discount Debenture
Claims shall receive no distribution on account of such holders' Allowed 12 1/2%
Senior Discount Debenture Claims. From and after the Subscription Commencement
Date, each holder of an Allowed 12 1/2% Senior Discount Debentures Claim that is
an Accredited Investor shall be entitled to subscribe for shares of New Common
Stock pursuant to the Newco Offering described in Article X.
4.9 CLASS 9 - THERMADYNE HOLDINGS EQUITY INTERESTS AND OTHER EQUITY
INTERESTS.
(a) Impairment and Voting. Class 9 is impaired by the Plan. Each
holder of a Thermadyne Holdings Equity Interest and Other Subsidiary Equity
Interest is conclusively presumed to have rejected the Plan and is not entitled
to vote to accept or reject the Plan.
(b) Distributions. Those affiliated holders of Thermadyne Holdings'
Equity Interests that are under common investment management and that
collectively hold more than fifty (50%) percent thereof shall receive on account
of their Thermadyne Holdings' Equity Interests, their Pro Rata share of 271,429
New Series C Warrants provided for in Section 4.2(b)(v) hereof. All other
holders of Thermadyne Holdings' Equity Interests and Other Subsidiary Equity
Interests shall not receive any distributions on account of such Thermadyne
Holdings Equity Interests and Other Subsidiary Equity Interests, and shall not
retain any Equity Interests on account thereof. On the Effective Date, all
Thermadyne Holdings Equity Interests and Other Subsidiary Equity Interests shall
be deemed cancelled, extinguished, and of no further force and effect as of the
Effective Date.
19
4.10 CLASS 10 - SUBSIDIARY EQUITY INTERESTS.
(a) Impairment and Voting. Class 10 is unimpaired by the Plan. Each
holder of a Subsidiary Equity Interest is conclusively presumed to have accepted
the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. The Subsidiary Debtors guaranteed all of the
obligations of Thermadyne Mfg. LLC under the Existing Credit Facility and
pledged all or substantially all of their respective assets as collateral for
their joint and several obligations under such guarantees. The Subsidiary
Debtors also guaranteed all of the obligations of Thermadyne Mfg. LLC and
Thermadyne Capital Corp. under the 9 7/8% Senior Subordinated Notes. The
Reorganized Parent is providing Cash, New Senior Debt Notes, New Common Stock,
and New Warrants for distribution to holders of Claims against the Reorganized
Debtors pursuant to the Plan. Accordingly, the holders of Subsidiary Equity
Interests shall retain ownership of their Subsidiary Equity Interests in each of
the Reorganized Subsidiaries.
ARTICLE V.
PROVISIONS REGARDING VOTING AND DISTRIBUTIONS
UNDER THE PLAN, ALLOWANCE OF CERTAIN CLAIMS, AND
TREATMENT OF DISPUTED, CONTINGENT AND UNLIQUIDATED
ADMINISTRATIVE EXPENSE CLAIMS, CLAIMS AND EQUITY INTERESTS
----------------------------------------------------------
5.1 Voting of Claims. Each holder of an Allowed Claim in an impaired
Class of Claims shall be entitled to vote separately to accept or reject the
Plan as provided in such order as is entered by the Bankruptcy Court
establishing certain procedures with respect to the solicitation and tabulation
of votes to accept or reject the Plan, or any other order or orders of the
Bankruptcy Court.
5.2 Nonconsensual Confirmation. Notwithstanding that any impaired
Class of Claims entitled to vote does not accept the Plan by the statutory
majorities required by section 1126(c) of the Bankruptcy Code or the deemed
rejection of the Plan by one or more Classes of Claims or Equity Interests, the
Debtors intend to request confirmation of the Plan under section 1129(b) of the
Bankruptcy Code.
5.3 Allowance of Certain Claims Under the Plan.
(a) Allowance of Class 2 Senior Secured Lender Claims. On the
Effective Date, the Class 2 Senior Secured Lender Claims shall be deemed Allowed
Claims, not subject to offset, reduction or credit of any kind whatsoever, in an
amount equal to the sum of (i) the aggregate principal amount outstanding under
the Existing Credit Facility as of the Commencement Date of $354,082,282.92 plus
(ii) letters of credit issued under the Existing Credit Facility and undrawn as
of the Commencement Date in the face amount of $8,380,973.11 plus (iii) accrued
and unpaid interest and letter of credit fees and other fees and amounts owing
(including, without limitation, cash management fees and overdraft repayments),
if any, through the Effective Date, at the non-default contractual rate set
forth in the Existing Credit Facility, plus (iv) any unpaid and reasonable
20
out-of-pocket expenses and reasonable fees and disbursements of all attorneys
and other advisors to the Prepetition Agent and each of the Senior Secured
Lenders, plus (v) other amounts, including, without limitation, those required
to be paid as adequate protection pursuant to the DIP Financing Order, through
the Effective Date, and less any principal payments actually received by the
Senior Secured Lenders or the amount of any letters of credit that have expired
or been replaced, in each case since the Commencement Date.
(b) Allowance of Class 5 9 7/8% Senior Subordinated Notes Claims. The
Class 5 9 7/8% Senior Subordinated Notes Claims shall be deemed Allowed Claims,
not subject to offset, reduction or credit of any kind whatsoever, in an amount
equal to the aggregate principal amount outstanding as of the Commencement Date
of $207,000,00.00 plus accrued and unpaid interest thereon at the non-default
rate to the Commencement Date of $20,441,250.
(c) Allowance of Class 6 Junior Subordinated Notes Claims. The Class
6 Junior Subordinated Notes Claims shall be deemed Allowed Claims, not subject
to offset, reduction or credit of any kind whatsoever, in an amount equal to the
aggregate principal amount outstanding as of the Commencement Date (including
accreted unpaid interest thereon) of $33,426,577.
(d) Allowance of Class 7 10.75% Senior Subordinated Notes Claims. The
Class 7 10.75% Senior Subordinated Notes Claims shall be deemed Allowed Claims,
not subject to offset, reduction or credit of any kind whatsoever, in an amount
equal to the aggregate principal amount outstanding as of the Commencement Date
of $37,060,000.00 plus accrued and unpaid interest thereon at the non-default
rate to the Commencement Date of $4,315,946.
(e) Allowance of Class 8 12-1/2% Senior Discount Debenture Claims.
The Class 8 12 1/2% Senior Discount Debenture Claims shall be deemed Allowed
Claims, not subject to offset, reduction or credit of any kind whatsoever, in an
amount equal to the aggregate principal amount outstanding as of the
Commencement Date (including accreted unpaid interest thereon) of $145,066,168.
5.4 Method of Distributions Under the Plan.
(a) In General. Subject to Bankruptcy Rule 9010, and except as
otherwise provided in this Section 5.4, all distributions under the Plan shall
be made by the Reorganized Debtors to the holder of each Allowed Claim, other
than a holder of an Allowed 9 7/8% Senior Subordinated Notes Claim and a holder
of an Allowed Senior Secured Lender Claim, at the address of such holder as
listed on the Schedules as of the Distribution Record Date unless the Debtors or
Reorganized Debtors have been notified in writing of a change of address,
including by the filing of a proof of Claim by such holder that provides an
address different from the address reflected on the Schedules provided that, in
the case of (i) a holder of an Allowed 9 7/8% Senior Subordinated Notes Claim,
all distributions to such holders shall be made by the Indenture Trustee at the
address in the Indenture Trustee's official records or as set forth in a
properly completed letter of transmittal remitted in accordance with Section
5.11 hereof and (ii) in the case of a holder of an Allowed Senior Secured Lender
21
Claim, all distributions to the Senior Secured Lenders under Section 4.2 of the
Plan shall be made by the Reorganized Debtors (or their Disbursing Agent) to the
Prepetition Agent for disbursement to the Senior Secured Lenders.
Notwithstanding the foregoing, all distributions of New Common Stock in respect
of any Claim against a Debtor shall be made by Reorganized Parent as Disbursing
Agent on behalf of such Debtor.
(b) Distributions of Cash. Any payment of Cash made by the
Reorganized Debtors pursuant to the Plan shall be made by check drawn on a
domestic bank or by wire transfer; provided that all distributions of Cash to
the (i) Senior Secured Lenders shall be made by the Reorganized Debtors (or
their Disbursing Agent) to the Prepetition Agent by wire transfer of immediately
available funds for disbursement to the Senior Secured Lenders and (ii) DIP
Lenders shall be made by the Reorganized Debtors (or their Disbursing Agent) to
the DIP Agent by wire transfer of immediately available funds for disbursement
to the DIP Lenders.
(c) Timing of Distributions. Any payment or distribution required to
be made under the Plan on a day other than a Business Day shall be made on the
next succeeding Business Day.
(d) Hart-Scott-Rodino Compliance. Any shares of New Common Stock to
be distributed under the Plan to any entity required to file a Premerger
Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, shall not be distributed until the notification and
waiting periods applicable under such Act to such entity shall have expired or
been terminated.
(e) Minimum Distributions. No payment of Cash less than one hundred
dollars ($100.00) shall be made by the Reorganized Debtors to any holder of a
Claim unless a request therefor is made in writing to the Reorganized Debtors.
(f) Fractional Shares; Fractional Warrants; Fractional Rights. No
fractional shares of New Common Stock, New Warrants or Cash in lieu thereof
shall be distributed pursuant to the Plan or the Newco Offering. When any
distribution on account of an Allowed Claim pursuant to the Plan or the Newco
Offering would otherwise result in the issuance of a number of shares of New
Common Stock or a number of New Warrants that is not a whole number, the actual
distribution of shares of New Common Stock or New Warrants shall be rounded as
follows: (i) fractions of 1/2 or greater shall be rounded to the next higher
whole number and (ii) fractions of less than 1/2 shall be rounded to the next
lower whole number. The total number of shares of New Common Stock to be
distributed to a Class of Claims or pursuant to the Newco Offering and the
number of New Warrants shall be adjusted as necessary to account for the
rounding provided for in this Section 5.4(f).
(g) Unclaimed Distributions. Any distributions of New Senior Debt
Notes, New Common Stock, New Warrants or other property under the Plan that are
unclaimed for a period of one year after distribution thereof shall be revested
in Reorganized Parent, cancelled and extinguished, and any entitlement of any
22
holder of any Claim to such distributions shall be extinguished and forever
barred. Any distributions of Cash on account of distributions to holders of
General Unsecured Claims that are unclaimed for a period of one year after
distribution thereof shall be distributed to holders of Allowed General
Unsecured Claims as a Surplus Distribution pursuant to Section 5.5(c) of the
Plan.
(h) Distributions to Holders as of the Distribution Record Date. As
at the close of business on the Distribution Record Date, the claims register
shall be closed, and there shall be no further changes in the record holders of
any Claims. The Debtors, the Reorganized Debtors and the Prepetition Agent shall
have no obligation to recognize any transfer of any Claims occurring after the
Distribution Record Date. The Debtors and the Reorganized Debtors shall instead
be entitled to recognize and deal for all purposes under the Plan (except as to
voting to accept or reject the Plan pursuant to Section 5.1 of the Plan) with
only those record holders of Claims as of the close of business on the
Distribution Record Date.
5.5 Distributions Withheld for Disputed General Unsecured Claims.
(a) Holdback for Disputed General Unsecured Claims. On the Initial
Distribution Date and each Subsequent Distribution Date, Reorganized Parent
shall withhold from the distributions to be made on such dates to the holders of
Allowed General Unsecured Claims, Cash equal to one hundred percent (100%) of
the distributions to which holders of Disputed General Unsecured Claims would be
entitled under the Plan as of such dates if such Disputed General Unsecured
Claims were Allowed Claims in their Disputed Claim Amounts (the "Holdback
Amount"). Holders of General Unsecured Claims shall not be entitled to any
interest or other accretions in respect of the Holdback Amount.
(b) Distributions Upon Allowance of Disputed General Unsecured
Claims. The holder of a Disputed General Unsecured Claim that becomes an Allowed
Claim subsequent to the Initial Distribution Date shall receive distributions of
Cash from the Reorganized Parent on the next Subsequent Distribution Date that
follows the Quarter during which such Disputed General Unsecured Claim becomes
an Allowed Claim pursuant to a Final Order; provided, however, that the
aggregate amount of such distributions shall not exceed the Holdback Amount.
Such distributions shall be made in accordance with the Plan based upon the
distributions that would have been made to such holder under the Plan if the
Disputed General Unsecured Claim had been an Allowed Claim on or prior to the
Effective Date without any interest accrued or paid thereon.
(c) Surplus Distributions to Holders of Allowed General Unsecured
Claims. To the extent that a Disputed General Unsecured Claim is not Allowed or
becomes an Allowed Claim in an amount less than the Disputed Claim Amount, the
excess of the Holdback Amount over the amount of Cash actually distributed on
account of such Disputed General Unsecured Claim, less any amounts to pay for
the legal expenses of the Reconstituted Committee in excess of the Reconstituted
Committee Compensation shall constitute surplus available for distributions to
holders of Allowed General Unsecured Claims (the "Surplus Distributions"). The
Surplus Distributions shall be distributed to the holders of Class 4 Allowed
General Unsecured Claims pursuant to Section 4.4 of the Plan based on the amount
of then existing Allowed General Unsecured Claims and Disputed General Unsecured
23
Claims; provided, however, that the Reorganized Debtors shall not be under any
obligation to make any Surplus Distributions of Cash on a Subsequent
Distribution Date unless the amount of Cash to be distributed aggregates
$350,000 or more, unless the distribution is the last distribution to be made
under the Plan.
5.6 Personal Injury Tort Claims and Environmental Claims. All
personal injury Tort Claims and Environmental Claims are Disputed Claims. Any
personal injury Tort Claim or Environmental Claim as to which a proof of claim
was timely filed in the Chapter 11 Cases shall be determined and liquidated in
the administrative or judicial tribunal(s) in which it is pending on the
Effective Date or, if no action was pending on the Effective Date, in any
administrative or judicial tribunal of appropriate jurisdiction, or in
accordance with any alternative dispute resolution or similar proceeding as same
may be approved by order of the Bankruptcy Court. Any personal injury Tort Claim
or Environmental Claim determined and liquidated (i) pursuant to a judgment
obtained in accordance with this Section 5.6 and applicable nonbankruptcy law
which is no longer appealable or subject to review, or (ii) in any alternative
dispute resolution or similar proceeding as same may be approved by order of the
Bankruptcy Court, shall be deemed an Allowed Claim in such liquidated amount and
satisfied in accordance with the Plan. Nothing contained in this Section 5.6
shall impair the Debtors' right to seek estimation of any and all personal
injury Tort Claims and Environmental Claims in a court or courts of competent
jurisdiction or constitute or be deemed a waiver of any Cause of Action that the
Debtors may hold against any entity, including, without limitation, in
connection with or arising out of any personal injury Tort Claim or
Environmental Claim.
5.7 Disbursing Agent. The Indenture Trustee for the 9 7/8% Senior
Subordinated Notes will act as Disbursing Agent under the Plan with respect to
distributions to holders of Class 5 9 7/8% Senior Subordinated Notes Claims and
will make all such distributions required to be distributed under the applicable
provisions of the Plan; provided, however, that all distributions to the Senior
Secured Lenders under Section 4.2 of the Plan shall be made by the Reorganized
Debtors (or their Disbursing Agent) to the Prepetition Agent for disbursement to
the Senior Secured Lenders. The Reorganized Debtors, or such Person(s) as the
Reorganized Debtors may designate, will act as Disbursing Agent under the Plan
with respect to all distributions to holders of Claims other than 9 7/8% Senior
Subordinated Notes Claims and will make all distributions required to be
distributed under the applicable provisions of the Plan; provided, however, that
all distributions to the Senior Secured Lenders under Section 4.2 of the Plan
shall be made by the Reorganized Debtors (or their Disbursing Agent) to the
Prepetition Agent for disbursement to the Senior Secured Lenders. Any Disbursing
Agent may employ or contract with other entities to assist in or make the
distributions required by the Plan. Each Disbursing Agent will serve without
bond, and each Disbursing Agent, other than the Reorganized Debtors, will
receive, without further Bankruptcy Court approval, reasonable compensation for
distribution services rendered pursuant to the Plan and reimbursement of
reasonable out-of-pocket expenses incurred in connection with such services from
the Reorganized Debtors on terms acceptable to the Reorganized Debtors. The
Reorganized Debtors shall hold all reserves and accounts pursuant to the Plan.
5.8 Setoffs and Recoupment. Other than with respect to the Senior
Secured Lender Claims and the Note Claims (as to which any and all rights of
setoff or recoupment have been waived), the Debtors may, but shall not be
required to, set off against or recoup from any Claim and the payments to be
24
made pursuant to the Plan in respect of such Claim, any Claims of any nature
whatsoever that the Debtors may have against the claimant, but neither the
failure to do so nor the allowance of any Claim hereunder shall constitute a
waiver or release by the Debtors of any setoff or recoupment right it may have
against the holder of such Claim.
5.9 Objections to and Resolution of Administrative Expense Claims,
Claims and Equity Interests. Except as to applications for allowances of
compensation and reimbursement of expenses under sections 330 and 503 of the
Bankruptcy Code, the Debtors or the Reorganized Debtors shall have the exclusive
right to make and file objections to Administrative Expense Claims, Claims and
Equity Interests subsequent to the Effective Date. All objections shall be
litigated to Final Order; provided, however, that following the Effective Date,
the Reorganized Debtors shall have the authority to compromise, settle,
otherwise resolve or withdraw any of their objections without approval of the
Bankruptcy Court. Unless otherwise ordered by the Bankruptcy Court, the Debtors
or the Reorganized Debtors shall file all objections to Administrative Expense
Claims that are the subject of proofs of claim or requests for payment filed
with the Bankruptcy Court (other than applications for allowances of
compensation and reimbursement of expenses), Claims and Equity Interests and
serve such objections upon the holder of the Administrative Expense Claim, Claim
or Equity Interest as to which the objection is made as soon as is practicable,
but in no event later than sixty (60) days after the Effective Date or such
later date as may be approved by the Bankruptcy Court.
5.10 Distributions Relating to Allowed Insured Claims. Distributions
under the Plan to each holder of an Allowed Insured Claim shall comply with the
treatment provided under the Plan for the Class in which such Allowed Insured
Claim is classified, but solely to the extent that such Allowed Insured Claim is
not satisfied from proceeds payable to the holder thereof under any pertinent
insurance policies and applicable law. Nothing contained in this Section 5.10
shall constitute or be deemed a waiver of any Cause of Action that the Debtors
or any entity may hold against any other entity, including, without limitation,
insurers under any policies of insurance.
5.11 Cancellation of Existing Securities. In connection with
receiving the distributions provided for pursuant to the Plan, each instrument
evidencing a 9 7/8% Senior Subordinated Notes Claim, Junior Subordinated Notes
Claim, 10.75% Senior Subordinated Notes Claim, or 12 1/2% Senior Discount
Debenture Claim will be deemed cancelled, extinguished, and of no further force
and effect as of the Effective Date; provided, however, that the Indentures
shall continue in effect for the purposes of (i) allowing the Indenture Trustees
to make any distributions on account of the 9 7/8% Senior Subordinated Notes
Claims and the Newco Offering pursuant to the Plan and to perform such other
necessary administrative functions with respect thereto, and (ii) permitting the
Indenture Trustees to maintain and assert any rights or liens for reasonable
fees, costs, and expenses under the Indentures, subject to Section 13.9 of the
Plan.
5.12 Special Procedures for Lost, Stolen, Mutilated or Destroyed
Instruments. In addition to any requirements under the Debtors' certificates of
incorporation or bylaws, any holder of a Claim evidenced by an instrument that
has been lost, stolen, mutilated or destroyed will, in lieu of surrendering such
instrument, deliver to the Disbursing Agent: (a) evidence satisfactory to the
25
Disbursing Agent and the Reorganized Debtors of the loss, theft, mutilation or
destruction; and (b) such security or indemnity as may be required by the
Disbursing Agent to hold the Disbursing Agent and the Reorganized Debtors
harmless from any damages, liabilities or costs incurred in treating such
individual as a holder of an instrument. Upon compliance with this Section 5.12,
the holder of a Claim evidenced by any such lost, stolen, mutilated or destroyed
instrument will, for all purposes under the Plan, be deemed to have surrendered
such instrument.
5.13 Allocation of Plan Distributions Between Principal and Interest.
Other than in respect of the distributions to be made to the Senior Secured
Lenders under the Plan, to the extent that any Allowed Claim entitled to a
distribution under the Plan is comprised of indebtedness and accrued but unpaid
interest thereon, such distribution shall be allocated to the principal amount
(as determined for federal income tax purposes) of the Claim first, and then to
accrued but unpaid interest.
ARTICLE VI.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
----------------------------------------
6.1 Assumption or Rejection of Executory Contracts and Unexpired
Leases
(a) Executory Contracts and Unexpired Leases. Pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts and
unexpired leases between the Debtors and any Person shall be deemed assumed by
the Reorganized Debtors as of the Effective Date, except for any executory
contract or unexpired lease (i) which previously has been assumed pursuant to an
order of the Bankruptcy Court entered prior to the Effective Date, (ii) which
has been rejected pursuant to an order of the Bankruptcy Court entered prior to
the Effective Date, (iii) as to which a motion for approval of the rejection of
such executory contract or unexpired lease has been filed and served prior to
the Effective Date or (iv) which is listed in Schedule 6.1(a)(x) (executory
contracts) or Schedule 6.1(a)(y) (unexpired leases), which schedules shall be
included in the Plan Supplement; provided, however, that the Debtors or
Reorganized Debtors, with the consent of the Senior Secured Lenders and
Creditors' Committee, shall have the right, on or prior to the Confirmation
Date, to amend Schedules 6.1(a)(x) or 6.1(a)(y) to delete any executory contract
or unexpired lease therefrom or add any executory contract or unexpired lease
thereto, in which event such executory contract(s) or unexpired lease(s) shall
be deemed, respectively, assumed or rejected. The Debtors or Reorganized Debtors
shall provide notice of any amendments to Schedules 6.1(a)(x) or 6.1(a)(y) to
the non-debtor parties to the executory contracts and unexpired leases affected
thereby. The listing of a document on Schedules 6.1(a)(x) and 6.1(a)(y) shall
not constitute an admission by the Debtors or Reorganized Debtors that such
document is an executory contract or an unexpired lease or that the Debtors or
Reorganized Debtors have any liability thereunder.
(b) Schedules of Rejected Executory Contracts and Unexpired Leases;
Inclusiveness. Each executory contract and unexpired lease listed or to be
listed on Schedules 6.1(a)(x) or 6.1(a)(y) that relates to the use or occupancy
of real property shall be deemed to include (i) all modifications, amendments,
26
supplements, restatements, or other agreements made directly or indirectly by
any agreement, instrument, or other document that in any manner affects such
executory contract or unexpired lease, without regard to whether such agreement,
instrument or other document is listed on Schedules 6.1(a)(x) or 6.1(a)(y) and
(ii) all executory contracts or unexpired leases appurtenant to the premises
listed on Schedules 6.1(a)(x) or 6.1(a)(y), including, without limitation, all
easements, licenses, permits, rights, privileges, immunities, options, rights of
first refusal, powers, uses, usufructs, reciprocal easement agreements, vault,
tunnel or bridge agreements or franchises, and any other interests in real
estate or rights in rem relating to such premises, unless any of the foregoing
agreements previously have been assumed.
(c) Insurance Policies. Each of the Debtors' insurance policies and
any agreements, documents or instruments relating thereto, including, without
limitation, any retrospective premium rating plans relating to such policies,
shall be treated as executory contracts under the Plan. Notwithstanding the
foregoing, distributions under the Plan to any holder of a Claim covered by any
of such insurance policies and related agreements, documents or instruments that
are assumed hereunder, shall comply with the treatment provided under Article IV
and Section 5.10 of the Plan. Nothing contained in this Section 6.1(c) shall
constitute or be deemed a waiver or release of any Cause of Action that the
Debtors may hold against any entity, including, without limitation, the insurer
under any of the Debtors' policies of insurance.
(d) Approval of Assumption or Rejection of Executory Contracts and
Unexpired Leases. Subject to the occurrence of the Effective Date, entry of the
Confirmation Order shall constitute (i) the approval, pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption of the executory
contracts and unexpired leases assumed pursuant to Section 6.1(a) hereof, (ii)
the extension of time, pursuant to section 365(d)(4) of the Bankruptcy Code,
within which the Debtors may assume or reject the unexpired leases specified in
Section 6.1(a) hereof through the date of entry of an order approving the
assumption or rejection of such unexpired leases and (iii) the approval,
pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the
rejection of the executory contracts and unexpired leases rejected pursuant to
Section 6.1(a) hereof.
(e) Cure of Defaults. Except as may otherwise be agreed to by the
parties, within sixty (60) days after the Effective Date, the Reorganized
Debtors shall cure any and all undisputed defaults under any executory contract
or unexpired lease assumed pursuant to the Plan in accordance with section
365(b)(1) of the Bankruptcy Code. All disputed defaults that are required to be
cured shall be cured either within thirty (30) days of the entry of a Final
Order determining the amount, if any, of the Debtors' or Reorganized Debtors'
liability with respect thereto, or as may otherwise be agreed to by the parties.
(f) Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to the Plan. Claims arising out
of the rejection of an executory contract or unexpired lease pursuant to Section
6.1(a) of the Plan must be filed with the Bankruptcy Court and/or served upon
the Debtors or Reorganized Debtors or as otherwise may be provided in the
Confirmation Order, by no later than thirty (30) days after the later of (i)
notice of entry of an order approving the rejection of such executory contract
27
or unexpired lease, (ii) notice of entry of the Confirmation Order and (iii)
notice of an amendment to Schedule 6.1(a)(x) or 6.1(a)(y). Any Claim not filed
within such time will be forever barred from assertion against the Debtors,
their Estates, the Reorganized Debtors and their property. Unless otherwise
ordered by the Bankruptcy Court, all Claims arising from the rejection of
executory contracts and unexpired leases shall be treated as General Unsecured
Claims under the Plan.
6.2 Indemnification Obligations. For purposes of the Plan, the
obligations of the Debtors to defend, indemnify, reimburse, or limit the
liability against any claims or obligations of their present and former
directors, officers or employees who served as directors, officers and
employees, respectively, on or after the Commencement Date, pursuant to the
Debtors' certificates of incorporation or bylaws, applicable state law or
specific agreement, or any combination of the foregoing, shall survive
confirmation of the Plan, remain unaffected thereby, and not be discharged,
irrespective of whether indemnification, defense, reimbursement or limitation is
owed in connection with an event occurring before, on or after the Commencement
Date.
6.3 Compensation and Benefit Programs. Except as provided in Section
6.1(a) of the Plan, and other than stock option or similar plans which will be
cancelled as part of the treatment of any Class of Claims under the Plan, all
employment and severance practices and policies, and all compensation and
benefit plans, policies, and programs of the Debtors applicable to their
directors, officers, and employees who served as directors, officers and
employees, respectively, on or after the Commencement Date, including, without
limitation, all savings plans, retirement plans, health care plans, severance
benefit plans, incentive plans, workers' compensation programs and life,
disability and other insurance plans, including the Key Employee Retention Plan
approved by the Bankruptcy Court by an order dated May 31, 2002, are treated as
executory contracts under the Plan and are hereby assumed pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code; provided, however, that the
Reorganized Debtors reserve the right to modify any and all such compensation
and benefit practices, plans, policies, and programs in accordance with the
terms thereof.
6.4 Retiree Benefits. Pursuant to section 1114 of the Bankruptcy
Code, payments, if any, due to any person for the purpose of providing or
reimbursing payments for retired employees and their spouses and dependents for
medical, surgical, or hospital care benefits, or benefits in the event of
sickness, accident, disability or death under any plan, fund or program (through
the purchase of insurance or otherwise) maintained or established in whole or in
part by the Debtors prior to the Commencement Date shall be continued for the
duration of the period the Debtors have obligated themselves to provide such
benefits; provided, however, that the Reorganized Debtors reserve the right to
modify any and all such plans, funds and programs in accordance with the terms
thereof.
28
ARTICLE VII.
PARTIAL CONSOLIDATION OF
THERMADYNE PARENT HOLDINGS AND THE SUBSIDIARIES
-----------------------------------------------
7.1 Partial Substantive Consolidation Treatment. Entry of the
Confirmation Order shall constitute the approval, pursuant to section 105(a) of
the Bankruptcy Code, effective as of the Effective Date, of the substantive
consolidation treatment of Claims in Classes 1, 2, 3, 4, and 5 of the Plan for
all purposes related to the Plan, including for purposes of voting, confirmation
and distribution. Pursuant to such order, (i) no distributions shall be made
under the Plan on account of intercompany claims between or among the Debtors,
(ii) no distributions shall be made under the Plan on account of Subsidiary
Equity Interests, (iii) all guarantees of any Debtor of the obligations of any
other Debtors shall be deemed eliminated so that any claim against any Debtor
and any guarantee thereof by any other Debtor and any joint or several liability
of any of the Debtors shall be deemed one obligation of the consolidated Debtors
and (iv) each and every Claim filed or to be filed in Classes 1, 2, 3, 4, and 5
of the Plan in the Chapter 11 Case of any Debtor shall be deemed filed against
the consolidated Debtors, and shall be deemed one Claim against and obligation
of the consolidated Debtors. Such partial substantive consolidation treatment
shall not affect (i) the separate legal status and corporate structures of the
Reorganized Debtors, subject to the right of the Debtors or Reorganized Debtors
to effect restructurings as provided in Section 7.2 of the Plan, (ii)
intercompany claims by and among the Debtors or Reorganized Debtors, and (iii)
Subsidiary Equity Interests.
7.2 Merger or Dissolution of Corporate Entities. On or as of the
Effective Date, as determined by the respective Debtors (subject to the
restructuring transactions described in Section 10.4), each of Thermadyne Mfg.
LLC, and Thermadyne Capital Corp. may be dissolved or merged with and into
Thermadyne Industries, Inc. On or as of the Effective Date, as determined by the
applicable Debtor, any Subsidiary may be merged into another of the Debtors or
dissolved. Upon the occurrence of any such merger, all assets of the merged
entities shall be transferred to and become the assets of the surviving
corporation, and all liabilities of the merged entities, except to the extent
discharged, released or extinguished pursuant to the Plan and the Confirmation
Order, shall be assumed by and shall become the liabilities of the surviving
corporation. All mergers and dissolutions on or prior to the Effective Date
shall be effective as of the Effective Date pursuant to the Confirmation Order,
without the taking of any further action by the stockholders or directors of any
of the Debtors, the Debtors in Possession or the Reorganized Debtors.
ARTICLE VIII.
PROVISIONS REGARDING CORPORATE GOVERNANCE
AND MANAGEMENT OF THE REORGANIZED DEBTORS
-----------------------------------------
8.1 General. On the Effective Date, the management, control and
operation of the Reorganized Debtors shall become the general responsibility of
the respective Boards of Directors of the Reorganized Debtors, which shall,
thereafter, have the responsibility for the management, control and operation of
the Reorganized Debtors.
29
8.2 Meetings of Stockholders. In accordance with the Amended
Reorganized Parent Certificate of Incorporation and the Amended Reorganized
Parent Bylaws, as the same may be amended from time to time, the first annual
meeting of the stockholders of Reorganized Parent shall be held on a date in
2004 selected by the New Board of Directors, and subsequent meetings of the
stockholders shall be held at least once annually each year thereafter.
8.3 Amended Bylaws and Amended Certificates of Incorporation. The
Reorganized Parent Amended Bylaws and the Amended Reorganized Parent Certificate
of Incorporation and the bylaws and certificates of incorporation of each of the
Reorganized Subsidiaries shall be amended and restated as of the Effective Date
to the extent necessary (a) to prohibit the issuance of nonvoting equity
securities as required by section 1123(a)(6) of the Bankruptcy Code, subject to
further amendment of such bylaws and certificates of incorporation as permitted
by applicable law, and (b) to effectuate the provisions of the Plan, in each
case without any further action by the stockholders or directors of the Debtors,
the Debtors in Possession or the Reorganized Debtors.
8.4 Boards of Directors.
(a) Reorganized Parent if the Newco Offering Is Not Consummated. In
the event that the Newco Offering is not consummated, the New Board of Directors
shall be comprised of seven members. Six members of the New Board of Directors
shall be nominated by the Senior Secured Lenders in consultation with the
Chairman of the Board and Chief Executive Officer of Thermadyne Holdings, and
one member shall be the Chairman of the Board and Chief Executive Officer of
Reorganized Parent. Each of the members of the New Board of Directors shall
serve until the first annual meeting of stockholders of Reorganized Parent or
his or her earlier resignation or removal in accordance with the Amended
Reorganized Parent Certificate of Incorporation or Amended Reorganized Parent
Bylaws, as the same may be amended from time to time.
(b) Reorganized Parent if the Newco Offering Is Consummated. In the
event that the Newco Offering is consummated, the New Board of Directors shall
be comprised of seven members. In the event the Newco Offering is fully
subscribed by Accredited Investors, six members shall be nominated by the
Creditors' Committee, in consultation with the Chairman of the Board and Chief
Executive Officer of Thermadyne Holdings, and one member shall be the Chairman
of the Board and Chief Executive Officer of Reorganized Parent. In the event the
Newco Offering is not fully subscribed but is nevertheless consummated because
the Newco Offering Minimum has been reached, two members of the New Board of
Directors shall be nominated by the Senior Secured Lenders, and four members
shall be nominated by the Creditors' Committee, in each case in consultation
with the Chairman of the Board and Chief Executive Officer of Thermadyne
Holdings, and one member shall be the Chairman of the Board and Chief Executive
Officer of Reorganized Parent. Each of the members of the New Board of Directors
shall serve until the first annual meeting of stockholders of Reorganized Parent
or his or her earlier resignation or removal in accordance with the Amended
Reorganized Parent Certificate of Incorporation or Amended Reorganized Parent
Bylaws, as the same may be amended from time to time.
30
(c) Reorganized Subsidiaries. The initial board of directors of each
of the Reorganized Subsidiaries shall be selected by the New Board of Directors
and shall consist of officers or employees of Reorganized Parent whose names
shall be disclosed prior to or at the Confirmation Hearing. Each of the members
of each such initial board of directors shall serve until the first meeting of
stockholders of the respective Reorganized Subsidiary or his or her earlier
resignation or removal in accordance with the certificate of incorporation or
bylaws of such Reorganized Subsidiary.
8.5 Officers. The Officers of the respective Debtors immediately
prior to the Effective Date shall serve as the initial officers of the
respective Reorganized Debtors on and after the Effective Date and in accordance
with any employment agreement with the Reorganized Debtors and applicable
nonbankruptcy law. After the Effective Date, the officers of the respective
Reorganized Debtors shall be determined by their respective new boards of
directors.
8.6 Authorization of New Securities. Without the need for any further
corporate action and pursuant to section 303 of the Delaware General Corporation
Law, Reorganized Parent shall be authorized to issue (i) 25,000,000 shares of
the New Common Stock (including the issuance of any equity interests specified
in the Management Stock Plan and the New Warrant Agreements), and (ii) 5,000,000
shares of preferred stock (which may have one or more series or classes, any or
all of which classes or series may have such voting powers and such
designations, preferences, rights, qualifications, limitations and restrictions
as shall be determined by the board of directors of Reorganized Parent and set
forth in the certificate of designation from time to time). The shares of New
Common Stock and preferred stock authorized in the Amended Reorganized Parent
Certificate of Incorporation may be used for the purposes stated therein.
8.7 Issuance of New Securities. The issuance of the securities and
notes listed below by Reorganized Parent is hereby authorized without further
act or action under applicable law, regulation, order or rule. The Confirmation
Order shall provide that the issuance of the following securities and notes on
account of Claims shall be exempt from the registration requirements of the
Securities Act of 1933, as amended, to the extent provided by section 1145 of
the Bankruptcy Code:
(a) the New Senior Debt Notes,
(b) 13,300,000 shares of New Common Stock,
(c) 1,157,000 New Series A Warrants,
(d) 700,000 New Series B Warrants, and
(e) 271,439 New Series C Warrants.
Certificates evidencing shares of the New Common Stock or the New
Warrants, and shares of New Common Stock issued upon exercise of the New
Warrants, that are received by holders of ten percent (10%) or more of the
31
outstanding New Common Stock calculated on a fully diluted basis or by holders
that are otherwise "underwriters" with respect to the securities will bear a
legend substantially in the form below:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED
FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER
SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE
REORGANIZED DEBTORS RECEIVE AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED.
Any entity that would receive legended securities as provided above
may instead receive certificates evidencing New Common Stock or New Warrants
without such legend if, prior to the Effective Date, such entity delivers to the
Reorganized Debtors (i) an opinion of counsel reasonably satisfactory to the
Reorganized Debtors to the effect that the shares of New Common Stock or New
Warrants to be received by such entity are not subject to the restrictions
applicable to "underwriters" under section 1145 of the Bankruptcy Code and may
be sold without registration under the Securities Act and (ii) a certification
that it is not an "underwriter" within the meaning of section 1145 of the
Bankruptcy Code.
Certificates evidencing shares of the New Common Stock received in
the Newco Offering will bear a legend substantially in the form below:
THE SHARES OF NEW COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE
SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR
QUALIFIED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
UNLESS THE REORGANIZED DEBTORS RECEIVE AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT SUCH REGISTRATION OR QUALIFICATION
IS NOT REQUIRED.
Any holder of a certificate evidencing shares of New Common Stock
bearing such legend may present such certificate to the transfer agent for such
shares for exchange for one or more new certificates not bearing such legend or
for transfer to a new holder without such legend at such time as (a) such shares
are sold pursuant to an effective registration statement under the Securities
Act or (b) such holder delivers to the Reorganized Debtors an opinion of counsel
reasonably satisfactory to the Reorganized Debtors to the effect that such
shares are no longer "restricted securities" and may be sold without
registration under the Securities Act, in which event the certificate issued to
the transferee will not bear such legend, unless otherwise specified in such
opinion.
32
8.8 Management Stock Plan. The Management Stock Plan will become
effective on the Effective Date or as soon thereafter as is reasonably
practicable and shall be in substantially the same form as the one to be
included in the Plan Supplement. Unissued shares of New Common Stock equal to
ten percent (10%), on a fully diluted basis, of the total number of shares of
New Common Stock outstanding immediately after the Effective Date shall be
reserved for issuance under the Management Stock Plan. Except as otherwise
disclosed in the Disclosure Statement or the Plan Supplement, the New Board of
Directors shall make individual awards of stock options exercisable into shares
of New Common Stock under the Management Stock Plan, and the compensation
committee of the New Board of Directors shall establish the terms relating
thereto (e.g., among other things, the number of options granted to each
participant in the Management Stock Plan, exercise price, and vesting).
ARTICLE IX.
IMPLEMENTATION AND EFFECT OF CONFIRMATION OF PLAN
-------------------------------------------------
9.1 Means for Implementation of the Plan. In addition to the
provisions set forth elsewhere in the Plan, the following shall constitute the
means for implementation of the Plan.
9.2 Effectiveness of Securities, Instruments and Agreements. On the
Effective Date, all documents described in the Plan Supplement and all other
agreements entered into or documents issued pursuant to the Plan, including,
without limitation, the Stock Purchase Agreement, the New Senior Debt Notes, the
New Senior Debt Notes Agreement, the New Working Capital Facility, the
Management Stock Plan, the New Common Stock, the New Warrants, the New Warrant
Agreements and/or any agreement entered into or instrument or document issued in
connection with any of the foregoing, as applicable, shall become effective and
binding upon the parties thereto in accordance with their respective terms and
conditions and shall be deemed to become effective simultaneously.
9.3 Corporate Action. On the Effective Date, all matters provided for
under the Plan that would otherwise require approval of the stockholders,
directors or members of one or more of the Debtors or Reorganized Debtors or
their successors in interest under the Plan, including, without limitation, the
authorization to issue or cause to be issued the New Common Stock, the Stock
Purchase Agreement, the New Warrants, the New Senior Debt Notes and documents
relating thereto, the New Working Capital Facility and documents relating
thereto, the adoption of the Amended Reorganized Parent Certificate of
Incorporation, the Amended Reorganized Parent Bylaws and the amended
certificates of incorporation and bylaws of the Reorganized Subsidiaries,
corporate mergers or dissolutions effectuated pursuant to the Plan, and the
election or appointment, as the case may be, of directors and officers of the
Debtors pursuant to the Plan, shall be deemed to have occurred and shall be in
full force and effect from and after the Effective Date pursuant to section 303
of the General Corporation Law of the State of Delaware and other applicable
general corporation law of the jurisdictions in which the Reorganized
Subsidiaries are incorporated, without any requirement of further action by the
stockholders or directors of the Debtors or Reorganized Debtors. On the
Effective Date or as soon thereafter as is practicable, the Reorganized Debtors
shall, if required, file their amended certificates of incorporation with the
33
secretary of state of the state in which each Reorganized Debtor is
incorporated, in accordance with the applicable general corporation law of such
states.
9.4 Approval of Agreements. The solicitation of votes on the Plan
shall be deemed a solicitation for the approval of the Plan Documents and all
transactions contemplated by the Plan, including the Management Stock Plan.
Entry of the Confirmation Order shall constitute approval of the Plan Documents
and all such transactions, subject to the occurrence of the Effective Date.
9.5 Cancellation of Existing Securities and Agreements. On the
Effective Date, the 9 7/8% Senior Subordinated Notes, the 10.75% Senior
Subordinated Notes, the 12-1/2% Senior Discount Debentures and the Junior
Subordinated Notes, and any or all instruments evidencing Note Claims shall be
canceled and extinguished, and the holders thereof shall not retain any rights
thereunder and such instruments shall evidence no rights, except the right to
receive the distributions, if any, to be made to holders of such instruments
pursuant to the Plan. Except with respect to the performance by the Indenture
Trustees or their agents of the obligations of the Indenture Trustees under the
Plan or in connection with any distribution to be made under the Plan, effective
as of the Effective Date, the Indenture Trustees and their agents, successors
and assigns shall be discharged of all of their obligations.
9.6 Cancellation of Equity Interests. On the Effective Date, all
Equity Interests, other than the Subsidiary Equity Interests, shall be cancelled
and extinguished, and the holders thereof shall not retain any rights thereunder
and such Equity Interests shall evidence no rights.
9.7 New Common Stock. The New Common Stock shall have such rights
with respect to dividends, liquidation, voting and other matters as are provided
for by applicable nonbankruptcy law or in the Amended Reorganized Parent
Certificate of Incorporation.
9.8 Listing of New Common Stock. The Reorganized Debtors shall use
reasonable commercial efforts to cause the shares of New Common Stock to be
listed on a national securities exchange or the NASDAQ National Market. The
Reorganized Debtors shall voluntarily maintain the registration of the New
Common Stock under Section 12(g) of the Exchange Act.
9.9 Registration Rights Agreement. The Reorganized Debtors will enter
into the Registration Rights Agreement as of the Effective Date.
9.10 Operation of the Debtors in Possession Between the Confirmation
Date and the Effective Date. The Debtors shall continue to operate as debtors in
possession, subject to the supervision of the Bankruptcy Court and pursuant to
the Bankruptcy Code and the Bankruptcy Rules during the period from the
Confirmation Date through and until the Effective Date, and any obligation
incurred by the Debtors in Possession during that period shall constitute an
Administrative Expense Claim.
9.11 Administration After the Effective Date. After the Effective
Date, the Reorganized Debtors may operate their businesses, and may use,
acquire, and dispose of their property, free of any restrictions of the
Bankruptcy Code and Bankruptcy Rules.
34
9.12 Term of Bankruptcy Injunction or Stays. All injunctions or stays
provided for in the Chapter 11 Cases under sections 105 or 362 of the Bankruptcy
Code, or otherwise, and in existence on the Confirmation Date, shall remain in
full force and effect until the Effective Date.
9.13 Revesting of Assets.
(a) The property of the Estate of each of the Debtors shall revest in
the respective Reorganized Debtor on the Effective Date.
(b) As of the Effective Date, all property of the Debtors and
Reorganized Debtors shall be free and clear of all Liens, Claims and interests
of holders of Claims and Equity Interests, except as otherwise provided in the
Plan or the Confirmation Order.
9.14 Causes of Action. As of the Effective Date, pursuant to section
1123(b)(3)(B) of the Bankruptcy Code, any and all Causes of Action accruing to
the Debtors and Debtors in Possession, including, without limitation, actions
under sections 510, 542, 544, 545, 547, 548, 549, 550, 551 and 553 of the
Bankruptcy Code, shall become assets of the Reorganized Debtors, and the
Reorganized Debtors shall have the authority to commence and prosecute such
Causes of Action for the benefit of the Estates of the Debtors. After the
Effective Date, the Reorganized Debtors shall have the authority to compromise
and settle, otherwise resolve, discontinue, abandon or dismiss all such Causes
of Action without approval of the Bankruptcy Court.
9.15 Discharge of Debtors. The rights afforded herein and the
treatment of all Claims and Equity Interests herein shall be in exchange for and
in complete satisfaction, discharge and release of Claims and Equity Interests
of any nature whatsoever, including any interest accrued on such Claims from and
after the Commencement Date, against the Debtors and the Debtors in Possession
or any of their assets or properties under the Plan. Except as otherwise
provided herein, on the Effective Date, (a) all such Claims against and Equity
Interests in the Debtors shall be satisfied, discharged and released in full,
and (b) all Persons shall be precluded from asserting against the Reorganized
Debtors, their successors, or their assets or properties any other or further
Claims or Equity Interests based upon any act or omission, transaction or other
activity of any kind or nature that occurred prior to the Confirmation Date.
9.16 Injunction Related to Discharge. Except as otherwise expressly
provided in the Plan, the Confirmation Order or a separate order of the
Bankruptcy Court, all Persons who have held, hold or may hold Claims against or
Equity Interests in any or all of the Debtors, are permanently enjoined, on and
after the Effective Date, from (a) commencing or continuing in any manner any
action or other proceeding of any kind with respect to any such Claim or Equity
Interest, (b) the enforcing, attaching, collecting or recovering by any manner
or means of any judgment, award, decree or order against the Debtors on account
of any such Claim or Equity Interest, (c) creating, perfecting or enforcing any
Lien or asserting control of any kind against the Debtors or against the
property or interests in property of the Debtors on account of any such Claim or
Equity Interest, (d) asserting any right of setoff, subrogation or recoupment of
any kind against any obligation due from the Debtors or against the property or
35
interests in property of the Debtors on account of any such Claim or Equity
Interest. Such injunctions shall extend to successors of the Debtors (including,
without limitation, the Reorganized Debtors) and their respective properties and
interests in property.
9.17 Injunction Regarding Worthless Stock Deduction. Any "50-percent
shareholder" of Thermadyne Holdings within the meaning of section 382(g)(4)(D)
of the Internal Revenue Code of 1986, as amended, is permanently enjoined from
claiming a worthless stock deduction with respect to its Thermadyne Holdings
Equity Interest for any taxable year of such shareholder ending prior to the
Effective Date.
9.18 New Senior Debt Notes. The New Senior Debt Notes shall (i) be in
the aggregate principal amount of $180 million plus the amount of any and all
additional New Senior Debt Notes to be issued pursuant to Section 4.2(b)(iv)(y)
of the Plan, (ii) be issued by Reorganized Parent, (iii) bear interest at the
rates set forth below, payable quarterly in arrears, which interest rates shall
be as follows: (A) from the Effective Date through the second anniversary of the
Effective Date, if the aggregate amount of indebtedness outstanding under the
New Senior Debt Notes, the New Working Capital Facility, any other working
capital facilities entered into by the Reorganized Debtors or their subsidiaries
(foreign or domestic) and all capitalized leases of the Reorganized Debtors (1)
is below $185 million, the interest rate will be LIBOR plus 3%, (2) is $185
million or above but below $200 million, the interest rate will be LIBOR plus
4%, (3) is $200 million or above but below $230 million, the interest rate will
be LIBOR plus 4.5%, (4) is $230 million or above but below $240 million, the
interest rate will be LIBOR plus 5%, (5) is $240 million or above but below $260
million, the interest rate will be LIBOR plus 6%, and (6) is above $260 million,
the interest rate will be LIBOR plus 6.5%; (B) from the second anniversary of
the Effective Date through the third anniversary of the Effective Date, if the
aggregate amount of indebtedness outstanding under the New Senior Debt Notes,
the New Working Capital Facility, any other working capital facilities entered
into by the Reorganized Debtors or their subsidiaries (foreign or domestic) and
all capitalized leases of the Reorganized Debtors (1) is below $185 million, the
interest rate will be LIBOR plus 3.5%, (2) is $185 million or above but below
$200 million, the interest rate will be LIBOR plus 4.5%, (3) is $200 million or
above but below $230 million, the interest rate will be LIBOR plus 5%, (4) is
$230 million or above but below $240 million, the interest rate will be LIBOR
plus 5.5%, (5) is $240 million or above but below $260 million, the interest
rate will be LIBOR plus 6.5%, and (6) is above $260 million, the interest rate
will be LIBOR plus 7%; and (C) thereafter, if the total amount outstanding under
the New Senior Debt Notes, the New Working Capital Facility, any other working
capital facilities entered into by the Reorganized Debtors or their subsidiaries
(foreign or domestic) and all capitalized leases of the Reorganized Debtors (1)
is below $185 million, the interest rate will be LIBOR plus 4%, (2) is $185
million or above but below $200 million, the interest rate will be LIBOR plus
5%, (3) is $200 million or above but below $230 million, the interest rate will
be LIBOR plus 5.5%, (4) is $230 million or above but below $240 million, the
interest rate will be LIBOR plus 6%, (5) is $240 million or above but below $260
million, the interest rate will be LIBOR plus 7%, and (6) is above $260 million,
the interest rate will be LIBOR plus 7.5%; (iv) require quarterly amortization
payments totaling the following annual amounts: $0 in the first year, $10
million in the second year, $20 million in the third year, $30 million in the
fourth year, and the remainder in the fifth year, which remainder shall be paid
in three quarterly installments of $10 million each and a final balloon payment
36
of the balance of the New Senior Debt Notes (including any New Senior Debt Notes
issued pursuant to Section 4.2(b)(iv)(y)(B)) which will be due on the fifth
anniversary of the Effective Date, (v) include an excess cash flow sweep
covenant, the terms of which are to be negotiated, (vi) provide for mandatory
prepayments (to be applied in the inverse order of maturity) upon the occurrence
of certain events including, without limitation, a mandatory prepayment of the
proceeds received by the Reorganized Debtors upon the exercise of any New
Warrants; (vii) be guaranteed by the Reorganized Debtors (other than Reorganized
Parent), (viii) be secured by a lien on all assets of the Reorganized Debtors
junior only to permitted liens to be identified in the New Senior Debt Notes
Agreement and the liens securing the obligations under the New Working Capital
Facility, and (ix) otherwise be imbued with such other terms as are set forth in
the New Senior Debt Notes Agreement.
9.19 New Working Capital Facility. On the Effective Date, the
transactions contemplated by the New Working Capital Facility shall be
consummated and thereupon become effective.
ARTICLE X.
THE NEWCO OFFERING
------------------
10.1 Subscription Commitments. On the Subscription Commencement Date,
Newco will cause a Subscription Agreement and other offering materials to be
delivered to each holder of a 9 7/8% Senior Subordinated Notes Claim, Junior
Subordinated Notes Claim, 10.75% Senior Subordinated Notes Claim, and 12 1/2%
Senior Discount Debentures Claim, which will give each such holder that
certifies that such holder is an Accredited Investor the right, pursuant to and
on terms and conditions of the Newco Offering, to make a Subscription Commitment
for up to 12,318,500 shares of New Common Stock at the Subscription Price.
10.2 Subscription Period. The Newco Offering shall commence on the
Subscription Commencement Date and shall expire on the Subscription Expiration
Date. After the Subscription Expiration Date, no additional Subscription
Commitments will be accepted without the written consent of a majority of the
Senior Secured Lenders, and Newco shall not be obligated to honor any purported
Subscription Commitments received by the Subscription Agent after the
Subscription Expiration Date, regardless of when the documents relating to such
Subscription Commitments were sent.
10.3 Subscription Price. The Subscription Price will be $13.85 per
share of New Common Stock, payable in Cash.
10.4 Restructuring Transactions. In the event that the Newco Offering
Minimum has been met, the following transactions will be consummated, in the
order set forth below:
(a) On or before the Subscription Expiration Date, the Subscription
Price Deposit provided for in Section 10.7 shall be paid by each Accredited
Investor subscribing for shares of New Common Stock and held in escrow, pending
the consummation of the transactions provided herein on the Effective Date.
(b) On the Effective Date, the following transactions shall occur
simultaneously:
37
(i) Newco shall issue to Accredited Investors in exchange for
receipt of the Subscription Price the number of shares of New Common Stock
subscribed for pursuant to valid and binding Subscription Commitments, subject
to the priority rules set forth in Section 10.5;
(ii) Pursuant to the Plan, the Stock Purchase Agreement and the
New Warrant Agreements, Newco shall deliver to Thermadyne Mfg. LLC, in exchange
for all of the outstanding capital stock of Thermadyne Industries, Inc. (A) all
the Cash received pursuant to paragraph (b)(i) above, (B) the New Senior Debt
Notes, (C) the New Warrants, (D) 981,500 shares of New Common Stock, and (E) an
additional amount of New Common Stock sufficient to comply with Section
4.2(b)(iv)(y). All such consideration shall be transferred, on behalf and at the
direction of Thermadyne Mfg. LLC, to the Disbursing Agent for distribution to
the holders of Senior Secured Lender Claims and 9 7/8% Senior Subordinated Notes
Claims in accordance with the Plan;
(iii) Holders of Senior Secured Lender Claims shall receive the
consideration provided for in Section 4.2(b) of the Plan;
(iv) Holders of 9 7/8% Senior Subordinated Notes Claims shall
receive the consideration provided for in Section 4.5 of the Plan;
(c) Thermadyne Holdings shall (i) take all actions necessary and
appropriate to effect and preserve a timely election under Section 338(h)(10) of
the Tax Code (which generally has the effect of treating the transfer of the
stock as a transfer of the underlying assets for federal income tax purposes)
with respect to the transfer of the stock of Thermadyne Industries, Inc. (and,
at the request of Reorganized Parent, with respect to the indirect transfer of
the stock of any Subsidiary), and any comparable election under state, local or
foreign law (including timely filing such forms, tax returns, election schedules
and other documents as may be required, including, without limitation, IRS Form
8023 and any amendments thereto), and (ii) file all reports and tax returns in a
manner consistent with such election and shall take no position contrary thereto
or inconsistent therewith in any tax filing, any discussion with or proceeding
before any taxing authority or otherwise.
(d) Following the Effective Date, all appropriate actions shall be
taken to liquidate and dissolve Thermadyne Holdings, Thermadyne Mfg. LLC and
Thermadyne Capital Corp.
10.5 Thresholds. No shares of New Common Stock shall be issued
pursuant to Subscription Commitments unless Newco receives Subscription
Commitments to purchase at least the Newco Offering Minimum. If Subscription
Commitments are received and accepted for the purchase of more than the Newco
Offering Maximum, shares of New Common Stock shall be distributed in accordance
with the following until the Newco Offering Maximum has been reached:
First, to the holders of the 9 7/8% Senior Subordinated Notes Claims
making Subscription Commitments. As among them, shares of New Common Stock will
be allocated to each holder of a 9 7/8% Senior Subordinated Claim that has made
a Subscription Commitment up to the lesser of (i) such holder's Pro Rata Share
of the9 7/8% Senior Subordinated Notes Claims and (ii) the total number of
shares subscribed for by such holder;
38
Second, to each holder of the 9 7/8% Senior Subordinated Notes Claims
requesting Oversubscribed Shares. If there is more than one such holder, each
such holder will receive that number of shares of New Common Stock determined by
the product of (i) the fraction, of which (A) the numerator is the number of
Oversubscribed Shares requested by such holder and (B) the denominator is the
number of Oversubscribed Shares requested by all such holders, multiplied by
(ii) the lesser of (A) the number of Oversubscribed Shares requested by all such
holders and (B) the Newco Offering Maximum less the total number of shares of
New Common Stock already subject to distribution pursuant to this Section 10.5;
Third, to the holders of the Junior Subordinated Notes Claims. As
among them, shares of New Common Stock will be allocated to each holder of a
Junior Subordinated Notes Claim that has made a Subscription Commitment up to
the lesser of (i) such holder's Pro Rata Share of such Junior Subordinated Notes
Claims and (ii) the total number of shares subscribed for by such holder;
Fourth, to each holder of a Junior Subordinated Notes Claim
requesting Oversubscribed Shares. If there is more than one such holder, each
such holder will receive that number of shares of New Common Stock determined by
the product of (i) the fraction, of which (A) the numerator is the number of
Oversubscribed Shares requested by such holder and (B) the denominator is the
number of Oversubscribed Shares requested by all such holders, multiplied by
(ii) the lesser of (A) the number of Oversubscribed Shares requested by all such
holders and (B) the Newco Offering Maximum less the total number of Shares of
New Common Stock already subject to distribution pursuant to this Section 10.5;
Fifth, to the holders of the 10.75% Senior Subordinated Notes Claims
and 12 1/2% Senior Discount Debentures Claims. As among them, shares of New
Common Stock will be allocated to each holder of a 10.75% Senior Subordinated
Notes Claims or a 12 1/2% Senior Discount Debentures Claim that has made a
Subscription Commitment up to the lesser of (i) such holder's Pro Rata Share of
such 10.75% Senior Subordinated Notes Claims and 12 1/2% Senior Discount
Debentures Claims (calculated as a single class) and (ii) the total number of
shares subscribed for by such holder;
Sixth, to each holder of a 10.75% Senior Subordinated Notes Claim or
a 12 1/2% Senior Discount Debentures Claim requesting Oversubscribed Shares. If
there is more than one such holder, each such holder will receive that number of
shares of New Common Stock determined by the product of (i) the fraction, of
which (A) the numerator is the number of Oversubscribed Shares requested by such
holder and (B) the denominator is the number of Oversubscribed Shares requested
by all such holders, multiplied by (ii) the lesser of (A) the number of
Oversubscribed Shares requested by all such holders and (B) the Newco Offering
Maximum less the total number of Shares of New Common Stock already subject to
distribution pursuant to this Section 10.5 .
10.6 Transfer Restriction; Revocation. Any holder entitled to make a
Subscription Commitment pursuant to Section 10.1 may transfer such holder's
opportunity to make a Subscription Commitment only to another holder eligible
under Section 10.1 to the extent of such holder's Pro Rata Share of shares of
New Common Stock (determined on the basis of all such shares of New Common Stock
being issued only to holders in such holder's Class). Any holder that breaches
its obligation to subscribe for and make payment on the account of the shares of
New Common Stock pursuant to a Subscription Commitment that has been accepted by
the Debtors shall forfeit (i) as liquidated damages the entire Subscription
Price Deposit it made pursuant to Section 10.7 and (ii) its entire entitlement
to receive any shares of New Common Stock pursuant to its Subscription
Commitment. No Person or related group for purposes of Section 13(d) of the
Exchange Act, together with any affiliates thereof may own or control more than
30% of the shares of New Common Stock issued under the Plan, including issuance
39
as a result of the Newco Offering, unless either (i) the consent of more than
50% of the Senior Secured Lender Claims or (ii) 100% of the shares of New Common
Stock issuable pursuant to the Newco Offering are issued pursuant to
Subscription Commitments.
10.7 Procedures for Making Subscription Commitments. Any holder
described in Section 10.1 shall make its Subscription Commitment by causing its
Subscription Agreement to be delivered to the Subscription Agent on or prior to
the Subscription Expiration Date, having properly completed and executed the
Subscription Agreement, and tendered the Subscription Price Deposit (defined
herein) in accordance with the procedures set forth herein and in the
Subscription Agreement. In order for any Subscription Commitment to be
effective, any holder of a 9 7/8% Senior Subordinated Notes Claim that is an
Accredited Investor shall tender as a deposit the amount of Cash that would be
necessary to purchase the lesser of (a) its Pro Rata Share of shares of New
Common Stock (determined on the basis as if all such shares were to be
distributed only to holders of Claims in such Class) and (b) the number of
shares actually subscribed for pursuant to such holder's Subscription Agreement
(the "Subscription Price Deposit"), and any holder of any Junior Subordinated
Notes Claim, 10.75% Senior Subordinated Notes Claim, or 12 1/2% Senior Discount
Debentures Claim that is an Accredited Investor shall tender as its Subscription
Price Deposit Cash equal to 20% of the aggregate Subscription Price for all
shares of New Common Stock subscribed for pursuant to such holder's Subscription
Agreement. All questions concerning the timelines, viability, form and
eligibility of any Subscription Commitment shall be determined solely by the
Debtors and Newco, whose determinations shall be final and binding. The Debtors,
in their sole discretion, may waive any defect or irregularity, or permit a
defect or irregularity to be corrected within such times as they may determine,
or reject the purported Subscription Commitment. Subscription Agreements shall
not be deemed to have been received or accepted until all irregularities have
been waived or cured within such time as the Debtors determine, in their sole
discretion. Neither the Debtors nor the Subscription Agent shall be under any
duty to give notification of any defect or irregularity in connection with the
submission of Subscription Agreements or incur any liability for failure to give
such notification.
10.8 Notification of Allocation of New Common Stock. Within ten (10)
Business Days after the Subscription Expiration Date, the Subscription Agent
shall notify each holder that made a Subscription Commitment of the number of
shares of New Common Stock to be allocated to it pursuant to this Article X.
Within ten (10) Business Days after receipt of such notice from the Subscription
Agent, such holder shall submit Cash equal to its aggregate Subscription Price
less its Subscription Price Deposit. Any Subscription Price Deposit made for
shares not received will be refunded to the holder that made such Subscription
Price Deposit as soon as practicable thereafter. Any holder's failure to pay the
unfunded portion of its Subscription Commitment in accordance with this Section
10.8 shall result in forfeiture of such holder's Subscription Price Deposit,
revocation of its Subscription Commitment, and reallocation of the shares of New
Common Stock that would have been so distributed to such holder in accordance
with Section 10.5.
10.9 Submission of Jurisdiction. Each holder entering into a
Subscription Agreement shall consent to the exclusive jurisdiction and venue of
the Bankruptcy Court for the resolution of any dispute arising thereunder
40
including, without limitation, in respect of payment of the Subscription Price,
and in respect of the terms of the Newco Offering set forth in the Plan.
10.10 Reservation. Notwithstanding the foregoing provisions of this
Article X, the Debtors reserve the right to substitute Thermadyne Holdings for
Newco and maintain Thermadyne Holdings as the Reorganized Parent. In such event,
appropriate adjustments shall be made to the provisions of this Plan relating to
the Newco Offering, including, without limitation, that the Restructuring
Transactions would not be implemented.
ARTICLE XI.
CONFIRMATION AND EFFECTIVENESS OF THE PLAN
------------------------------------------
11.1 Conditions Precedent to Confirmation. The Plan shall not be
confirmed by the Bankruptcy Court unless and until the following conditions
shall have been satisfied or waived pursuant to Section 11.4 of the Plan:
(a) The proposed Confirmation Order shall be in form and substance
reasonably acceptable to the Debtors, the DIP Agent, the Senior Secured
Lenders and the Creditors' Committee; and
(b) All exhibits to the Plan, including those to be contained in the
Plan Supplement, shall be in form and substance reasonably acceptable to
the Debtors, the DIP Agent, the Senior Secured Lenders, and the Creditors'
Committee.
11.2 Conditions Precedent to Effectiveness. The Plan shall not become
effective unless and until the following conditions have been satisfied or
waived pursuant to Section 11.4 of the Plan:
(a) The Confirmation Order shall have been entered and there shall be
no stay or injunction that would prevent the occurrence of the Effective
Date;
(b) The Confirmation Order shall authorize the Debtors and the
Reorganized Debtors to take all actions necessary or appropriate to
consummate the Plan and to enter into, implement and effectuate the
contracts, instruments, releases, leases and other agreements or documents
created in connection with the Plan;
(c) The statutory fees owing to the United States Trustee shall have
been paid in full;
(d) All Plan Documents and exhibits to the Plan, including those to be
contained in the Plan Supplement, shall be in a form satisfactory to the
Debtors, the Reorganized Debtors, the DIP Agent, the Senior Secured Lenders
and the Creditors' Committee;
(e) Each of the Amended Reorganized Parent Certificate of
Incorporation, the Amended Reorganized Subsidiaries Certificates of
Incorporation, the Amended Reorganized Parent Bylaws, and the Amended
41
Reorganized Subsidiaries Bylaws, in form and substance satisfactory to the
Reorganized Debtors, the Senior Secured Lenders and the Creditors'
Committee shall have been filed, effected, or executed, as required;
(f) All other actions, authorizations, consents and regulatory
approvals required (if any) and all Plan Documents necessary to implement
the provisions of the Plan shall have been obtained, effected or executed
in a manner acceptable to the Debtors or, if waivable, waived by the Person
or Persons entitled to the benefit thereof;
(g) All amounts owed under the DIP Facility shall have been
indefeasibly paid in full in Cash by wire transfer of immediately available
funds, the commitments thereunder terminated and the outstanding DIP
Letters of Credit will either (a) be (i) returned to the issuer marked
cancelled, or (ii) cash collateralized with Cash in an amount equal to 105%
of the face amount of the outstanding letters of credit or (b) the issuer
will be provided with back-to-back letters of credit in an amount equal to
105% of the face amount of the outstanding letters of credit and in form
and substance and from a financial institution acceptable to the issuer;
(h) The New Working Capital Facility shall have been entered into by
all parties thereto and all conditions to the initial draw thereunder shall
have been satisfied in accordance with the terms thereof such that the
Reorganized Parent and Reorganized Debtors shall have credit available to
them to provide financing sufficient to meet their Cash obligations under
the Plan and have sufficient borrowing capacity to satisfy their working
capital requirements as of and after the Effective Date;
(i) The New Senior Debt Notes Agreement, in form and substance
satisfactory to the Senior Secured Lenders and reasonably satisfactory to
the Creditors' Committee, shall have been entered into by all parties
thereto and all New Senior Debt Notes shall have been issued thereunder;
(j) The New Series A Warrant Agreement shall have been entered into by
all parties thereto and all New Series A Warrants shall have been issued
thereunder;
(k) The New Series B Warrant Agreement shall have been entered into by
all parties thereto and all New Series B Warrants shall have been issued
thereunder;
(l) The New Series C Warrant Agreement shall have been entered into by
all parties thereto and all New Series C Warrants shall have been issued
thereunder;
(m) The Newco Offering shall be completed if the Newco Offering
Minimum is satisfied; and
(n) The New Common Stock shall have been duly authorized and, with the
occurrence of the Effective Date, shall be validly issued and outstanding.
11.3 Effect of Failure of Conditions. If each condition to the
Effective Date specified in Section 11.2 of the Plan has not been satisfied or
duly waived within ninety (90) days after the Confirmation Date, then (unless
the period for waiver or satisfaction of such conditions has been extended with
the consent of the Debtors, the DIP Agent, the Senior Secured Lenders and the
42
Creditors' Committee) the Confirmation Order will be vacated by the Bankruptcy
Court. If the Confirmation Order is vacated pursuant to this Section 11.3, the
Plan shall be deemed null and void in all respects, including without limitation
the discharge of Claims pursuant to section 1141 of the Bankruptcy Code and the
assumptions or rejections of executory contracts and unexpired leases as
provided by the Plan, and nothing contained herein shall (1) constitute a waiver
or release of any Causes of Action by, or Claims against, the Debtors or (2)
prejudice in any manner the rights of the Debtors.
11.4 Waiver of Conditions. The Debtors may, with the consent of the
DIP Agent, the Senior Secured Lenders and the Creditors' Committee, which
consent shall not be unreasonably withheld, waive, by a writing signed by an
authorized representative of the Debtors and subsequently filed with the
Bankruptcy Court, the condition precedent to confirmation and effectiveness of
the Plan specified in Sections 11.1(b) and 11.2(d), (e), (f), and (i) of the
Plan.
ARTICLE XII.
RETENTION OF JURISDICTION
-------------------------
The Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of, and related to, the Chapter 11 Cases and the Plan pursuant to,
and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
(a) To hear and determine pending applications for the assumption or
rejection of executory contracts or unexpired leases, if any are pending,
and the allowance of Claims resulting therefrom;
(b) To determine any and all adversary proceedings, applications and
contested matters;
(c) To hear and determine any objections to or requests to estimate
Administrative Expense Claims, Claims or Equity Interests;
(d) To enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified or
vacated;
(e) To issue such orders in aid of execution and consummation of the
Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(f) To consider any amendments to or modifications of the Plan, to
cure any defect or omission, or to reconcile any inconsistency in the Plan,
the Plan Documents, or any order of the Bankruptcy Court, including,
without limitation, the Confirmation Order;
(g) To hear and determine all applications for compensation and
reimbursement of expenses of Professionals under sections 330, 331, and
503(b) of the Bankruptcy Code and to hear any disputes regarding the
expenses of the Reconstituted Committee;
43
(h) To hear and determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan (other than
disputes relating to documents evidencing the New Working Capital Facility,
the New Senior Debt Notes or any post-Effective Date issue of corporate
governance);
(i) To recover all assets of the Debtors and property of the Debtors'
Estates, wherever located;
(j) To determine any Claim of or any liability to a governmental unit
that may be asserted as a result of the transactions contemplated herein;
(k) To enforce this Plan, the Confirmation Order and any other order,
judgment, injunction or ruling entered or made in the Chapter 11 Cases,
including, without limitation, the injunction, exculpation and releases
provided for in this Plan;
(l) To hear and determine matters concerning state, local and federal
taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code
(including, but not limited to, in connection with an expedited
determination under section 505(b) of the Bankruptcy Code of the tax
liability of the Debtors for all taxable periods through the Effective
Date, and in the event the restructuring transactions described in Section
10.4 are implemented, for all taxable periods of Thermadyne Holdings,
Thermadyne Mfg. LLC and Thermadyne Capital Corp. through the liquidation
and dissolution of such entities);
(m) To hear any other matter not inconsistent with the Bankruptcy
Code; and
(n) To enter a final decree closing the Chapter 11 Cases.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
------------------------
13.1 Effectuating Documents and Further Transactions. Each of the
Debtors or Reorganized Debtors, as the case may be, is authorized to execute,
deliver, file or record such contracts, instruments, releases, indentures and
other agreements or documents and take such actions as may be necessary or
appropriate to implement, effectuate and further evidence the terms and
conditions of the Plan and any notes or securities issued pursuant to the Plan.
13.2 Exemption from Transfer Taxes. Pursuant to section 1146(c) of
the Bankruptcy Code, the issuance, transfer or exchange of notes or equity
securities under the Plan, the creation of any mortgage, deed of trust or other
security interest, the making or assignment of any lease or sublease, or the
making or delivery of any instrument of transfer under, in furtherance of, or in
connection with the Plan, (including, without limitation, any merger agreements
or agreements of consolidation, deeds, bills of sale or assignments executed in
connection with any of the transactions contemplated by the Plan, and the making
of an election under Section 338 of the Tax Code) shall not be subject to, or
give rise to, any stamp, real estate transfer, mortgage recording, or other
similar tax.
44
13.3 Authorization to Request Prompt Tax Determinations. Reorganized
Parent is authorized, on behalf of each of the Debtors, to request an expedited
determination under section 505(b) of the Bankruptcy Code of the tax liability
of the Debtors, for all taxable periods through the Effective Date; provided,
however, in the event the restructuring transactions described in Section 10.4
are implemented, Thermadyne Holdings (rather than Newco) shall be authorized, on
behalf of each of itself, Thermadyne Mfg. LLC and Thermadyne Capital Corp., to
request an expedited determination under section 505(b) of the Bankruptcy Code
of their tax liability for all taxable periods through the liquidation and
dissolution of such entities.
13.4 Exculpation. Neither the Debtors nor the Reorganized Debtors,
the Creditors' Committee, the Senior Secured Lenders, the DIP Lenders, the
Prepetition Agent, the DIP Agent, the Indenture Trustees, or any of their
respective members, officers, directors, agents, financial advisors, attorneys,
employees, equity holders, partners, affiliates and representatives (the
"Exculpated Parties") shall have or incur any liability to any holder of a Claim
or Equity Interest for any act or omission in connection with, related to, or
arising out of, the Chapter 11 Cases and the Plan, the pursuit of confirmation
of the Plan, the consummation of the Plan or the administration of the Plan or
the property to be distributed under the Plan, except for (i) any express
contractual obligation owing by any such Person or (ii) willful misconduct or
gross negligence, and, in all respects, the Exculpated Parties, directors,
employees, advisors, and agents shall be entitled to rely upon the advice of
counsel with respect to their duties and responsibilities under the Plan;
provided that nothing in the Plan shall, or shall be deemed to, release the
Exculpated Parties, or exculpate the Exculpated Parties with respect to, their
respective obligations or covenants arising pursuant to this Plan.
13.5 Debtors' Releases. On and as of the Effective Date, the Debtors
and the Reorganized Debtors shall release unconditionally and forever each
present or former director, officer, or employee of the Debtors, each member of
the Creditors' Committee, the Senior Secured Lenders, the DIP Lenders, the
Prepetition Agent, the DIP Agent, each holder of a Note Claim, other than a
holder that is a Person identified in Section 9.17 of the Plan, each Indenture
Trustee, and each of their respective members, officers, directors, agents,
financial advisors, attorneys, employees, equity holders, parent corporations,
subsidiaries, partners, affiliates and representatives from any and all Causes
of Action whatsoever in connection with, related to, or arising out of the
Chapter 11 Cases, the pursuit of confirmation hereof, the consummation hereof,
the administration hereof, or the property to be distributed hereunder;
provided, however, that the foregoing shall not operate as a waiver of or
release from any Causes of Action arising out of (i) any express contractual
obligation owing by any such Person or (ii) the willful misconduct or gross
negligence of any such Person.
13.6 Lender Releases. On the Confirmation Date, but as of and subject
to the occurrence of the Effective Date, in consideration for, and as a part of
the treatment afforded to the holders of Claims and Equity Interests under this
Plan, and for other valuable consideration, the Debtors, the Reorganized
Debtors, the Creditors' Committee (and each member thereof) and every holder of
a Claim or Equity Interest unconditionally and irrevocably forever waive,
release and discharge all current and former Senior Secured Lenders and DIP
Lenders, the Prepetition Agent, the DIP Agent and all persons or entities who
were their respective directors, officers, employees, members, partners, equity
holders, agents, advisors, professional persons, representatives, parent
corporations, subsidiaries, affiliates and representatives from any and all
45
Causes of Action based upon any act or omission related to the Debtors and their
business affairs, including, without limitation, any extensions of credit or
other financial services or accommodations made or not made to the Debtors prior
to the Effective Date; provided, however, that the foregoing shall not operate
as a waiver of or release from any Causes of Action arising out of (i) any
express contractual obligation owing by any such Person or (ii) the willful
misconduct or gross negligence of any such Person. The Confirmation Order shall
specifically provide for the foregoing releases and shall enjoin the prosecution
of any such released Causes of Action.
13.7 Injunction Relating to Exculpation and Release. The Confirmation
Order will contain an injunction permanently enjoining the commencement or
prosecution by the Debtors, the Reorganized Debtors and any other Person,
whether derivatively or otherwise, of any Cause of Action exculpated, released
or discharged pursuant to this Plan against the released and exculpated parties.
13.8 Reconstitution of Creditors' Committee. On the Effective Date,
the Creditors' Committee shall be reconstituted to consist of one member, who
shall serve without compensation and shall be based as close to St. Louis,
Missouri as is reasonably practicable (the "Reconstituted Committee"). The name
of the initial member of the Reconstituted Committee shall be designated and
disclosed by the Creditors' Committee on or before the date of the Confirmation
Hearing. The Reconstituted Committee shall be permitted to monitor and consult
with the Reorganized Debtors regarding any Disputed General Unsecured Claims.
The Reconstituted Committee will terminate at such time when the amount of
Disputed General Unsecured Claims is less than ten percent (10%) of the amount
of Disputed General Unsecured Claims as of the Effective Date. The Reconstituted
Committee shall be authorized to retain one local counsel, the fees and expenses
of which shall be borne by the Reorganized Debtors up to the Reconstituted
Committee Compensation (inclusive of the expenses of the member of the
Reconstituted Committee), and any fees and expenses in excess of the
Reconstituted Committee Compensation shall be chargeable against the Holdback
Amount. In the event of any dispute regarding the expenses of the Reconstituted
Committee or the fees and expenses of its counsel, the amount of any such fees
and expenses shall be determined by the Bankruptcy Court.
13.9 Certain Indenture Trustee Fees and Expenses The Reorganized
Debtors will pay in Cash and pursuant to the Confirmation Order the reasonable
fees and expenses of the Indenture Trustees through the Effective Date without
the need for the Indenture Trustees to file an application for allowance with
the Bankruptcy Court. Upon payment of the reasonable fees and expenses of the
Indenture Trustees through the Effective Date in full, the Indenture Trustees
will be deemed to have released any liens and priority rights for fees and
expenses under the Indentures solely to the extent of such payment. The
Reorganized Debtors shall pay the Indenture Trustees reasonable fees and
expenses (including counsel's fees and expenses) incurred after the Effective
Date in connection with making a distribution to holders of 9 7/8% Senior
Subordinated Notes Claims and in connection with the Newco Offering. If the
Debtors and an Indenture Trustee cannot agree on the amount of fees and expenses
to be paid to such Indenture Trustee, the amount of fees and expenses shall be
determined by the Bankruptcy Court.
46
13.10 Post-Effective Date Fees and Expenses. From and after the
Effective Date, the Reorganized Debtors shall, in the ordinary course of
business and without the necessity for any approval by the Bankruptcy Court, pay
the reasonable fees and expenses of Professionals thereafter incurred by the
Reorganized Debtors, including, without limitation, those fees and expenses
incurred in connection with the implementation and consummation of the Plan.
13.11 Payment of Statutory Fees. All fees payable pursuant to section
1930 of title 28 of the United States Code, as determined by the Bankruptcy
Court at the Confirmation Hearing, shall be paid in Cash as soon as practicable
following the Effective Date.
13.12 Amendment or Modification of the Plan. Alterations, amendments
or modifications of the Plan may be proposed in writing by the Debtors, with the
consent of the Creditors' Committee, the DIP Agent, and the Senior Secured
Lenders which consent shall not be unreasonably withheld, at any time prior to
the Confirmation Date in conformity with section 1127(a) of the Bankruptcy Code,
provided that the Plan, as altered, amended or modified, satisfies the
conditions of sections 1122 and 1123 of the Bankruptcy Code, and the Debtors
shall have complied with section 1125 of the Bankruptcy Code. The Plan may be
altered, amended or modified by the Debtors, with the consent of the Creditors'
Committee, the DIP Agent, and the Senior Secured Lenders which consent shall not
be unreasonably withheld, at any time after the Confirmation Date in conformity
with section 1127(b) of the Bankruptcy Code, provided that the Plan, as altered,
amended or modified, satisfies the requirements of sections 1122 and 1123 of the
Bankruptcy Code and the Bankruptcy Court, after notice and a hearing, confirms
the Plan, as altered, amended or modified, under section 1129 of the Bankruptcy
Code and the circumstances warrant such alterations, amendments or
modifications. A holder of a Claim that has accepted the Plan shall be deemed to
have accepted the Plan, as altered, amended or modified, if the proposed
alteration, amendment or modification does not materially and adversely change
the treatment of the Claim of such holder.
13.13 Severability. In the event that the Bankruptcy Court
determines, prior to the Confirmation Date, that any provision in the Plan is
invalid, void or unenforceable, the Plan will not be confirmed unless such
provision is altered, amended or modified in accordance with Section 13.12 of
the Plan and the Bankruptcy Court confirms the Plan as so altered, amended or
modified.
13.14 Revocation or Withdrawal of the Plan. The Debtors reserve the
right to revoke or withdraw the Plan prior to the Confirmation Date. If the
Debtors revoke or withdraw the Plan prior to the Confirmation Date, then the
Plan shall be deemed null and void. In such event, nothing contained herein
shall constitute or be deemed a waiver or release of any Claims by or against
the Debtors or any other Person, an admission against interests of the Debtors,
nor shall it prejudice in any manner the rights of the Debtors or any Person in
any further proceedings involving the Debtors.
13.15 Binding Effect. The Plan shall be binding upon and inure to the
benefit of the Debtors, the holders of Claims and Equity Interests, and their
respective successors and assigns, including, without limitation, the
Reorganized Debtors.
47
13.16 Notices. All notices, requests and demands to or upon the
Debtors or the Reorganized Debtors to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when actually delivered or, in the case of notice by facsimile
transmission, when received and telephonically confirmed, addressed as follows:
Thermadyne Holdings Corporation Thermadyne Holdings Corporation
101 South Hanley Rd., Suite 600 101 South Hanley Rd., Suite 600
St. Louis, Missouri 63105 St. Louis, Missouri 63105
Attn: Mr. James Tate Attn: Patricia S. Williams, Esq.
Telephone: (314) 746-2107 Telephone: (314) 746-2328
Facsimile: (314) 746-2374 Facsimile: (314) 746-2327
with copies to:
Weil, Gotshal & Manges LLP Weil, Gotshal & Manges LLP
767 Fifth Avenue 100 Crescent Court, Suite 1300
New York, New York 10153 Dallas, Texas 75201
Attn: Alan B. Miller, Esq. Attn: R. Scott Cohen, Esq.
Telephone: (212) 310-8000 Telephone: (214) 746-7700
Facsimile: (212) 310-800 Facsimile: (214) 746-7777
Bryan Cave LLP
One Metropolitan Square
211 North Broadway
St. Louis, Missouri 63102
Attn: Lloyd A. Palans, Esq.
Telephone: (314) 259-2000
Facsimile: (314) 259-2020
13.17 Governing Law. Except to the extent the Bankruptcy Code,
Bankruptcy Rules or other federal law is applicable, or to the extent the Plan
or any agreement entered into pursuant to the Plan provides otherwise, the
rights and obligations arising under the Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without giving effect to the principles of conflicts of law of such
jurisdiction.
13.18 Withholding and Reporting Requirements. In connection with the
consummation of the Plan, the Debtors or the Reorganized Debtors, as the case
may be, shall comply with all withholding and reporting requirements imposed by
any federal, state, local or foreign taxing authority and all distributions
hereunder shall be subject to any such withholding and reporting requirements.
13.19 Plan Supplement. Forms of the Amended Reorganized Parent
Holdings Certificate of Incorporation, the Amended Reorganized Parent Holdings
Bylaws, the New Senior Debt Notes Agreement, Schedules 6.1(a)(x) and 6.1(a)(y)
referred to in Section 6.1 of the Plan, the Management Stock Plan, the New
48
Warrant Agreements and the Registration Rights Agreement shall be contained in
the Plan Supplement, filed with the Clerk of the Bankruptcy Court and served
upon the Office of the United States Trustee, the Creditors' Committee, the
Prepetition Agent and the DIP Agent, at least ten (10) days prior to the
Balloting Deadline. Upon filing with the Bankruptcy Court, the Plan Supplement
may be inspected in the office of the Clerk of the Bankruptcy Court during
normal court hours. Holders of Claims or Equity Interests may obtain a copy of
the Plan Supplement by written request to Thermadyne Holdings, given as provided
this Section 13.19.
13.20 Headings. Headings are used in the Plan for convenience and
reference only, and shall not constitute a part of the Plan for any other
purpose and shall not limit or otherwise affect the provisions of the Plan.
13.21 Exhibits/Schedules. All exhibits and Schedules to the Plan,
including the Plan Supplement, are incorporated into and are a part of the Plan
as if set forth in full herein.
13.22 Section 1125(e) of the Bankruptcy Code. As of the Confirmation
Date, the Debtors, the Creditors' Committee, and the Senior Secured Lenders
shall be deemed to have solicited acceptances hereof in good faith and in
compliance with the applicable provisions of the Bankruptcy Code. As of the
Confirmation Date, the Debtors, the Creditors' Committee, and the Senior Secured
Lenders and each of their respective members, officers, directors, agents,
financial advisors, attorneys, employees, equity holders, partners, affiliates
and representatives shall be deemed to have participated in good faith and in
compliance with the applicable provisions of the Bankruptcy Code in the offer
and issuance of the new securities hereunder, and therefore are not, and on
account of such offer, issuance and solicitation shall not be, liable at any
time for the violation of any applicable law, rule or regulation governing the
solicitation of acceptances or rejections hereof or other offer and issuance of
new securities hereunder.
13.23 Filing of Additional Documents. On or before substantial
consummation of the Plan, the Debtors shall file with the Bankruptcy Court such
agreements and other documents as may be necessary or appropriate to effectuate
and further evidence the terms and conditions of the Plan.
13.24 No Admissions. Notwithstanding anything herein to the contrary,
nothing contained in the Plan shall be deemed as an admission by any Person with
respect to any matter set forth herein.
49
13.25 Inconsistency. In the event of any inconsistency between the
Plan and the Disclosure Statement, any exhibit to the Plan or the Disclosure
Statement or any other instrument or document created or executed pursuant to
the Plan, the Plan shall govern. In the event of any inconsistency between the
Plan and the New Working Capital Facility or the New Senior Debt Notes
Documents, the New Working Capital Facility and the New Senior Debt Notes
Documents, as applicable, shall govern.
Dated: St. Louis, Missouri
January 17, 2003
THERMADYNE HOLDINGS CORPORATION
a Delaware corporation
(for itself and on behalf of each of
the Subsidiaries)
By: /s/ James H. Tate
------------------------------------
James H. Tate
Senior Vice President and
Chief Financial Officer
50