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EXHIBIT 10.26
AGREEMENT
THIS AGREEMENT, made and entered into as of the 19th day of
July, 1996 by and between THERMADYNE HOLDINGS CORPORATION, a Delaware
corporation with its principal office located in St. Louis, Missouri (together
with its successors and assigns permitted under this Agreement, the "Company"),
and Xxxxxxx X. Xxxxxx, who resides at 00 Xxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx
63124(the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has determined
that it would be in the best interests of the Company to provide for certain
benefits to the Executive in the event of certain terminations of employment,
upon the terms and conditions provided in this Agreement (the "Agreement");
WHEREAS, the Company may request that the Executive be
employed by the Company or one or more of its Subsidiaries; and
WHEREAS, the Company is entering into this Agreement by and on
behalf of itself and its Subsidiaries.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt of which is mutually acknowledged, the Company and the Executive
(individually a "Party" and together the "Parties") agree as follows:
1. Definitions:
(a) "Annual Compensation" shall mean (I) plus (II), where
(I) is the greater of Base Salary in effect on June 30, 1996 or Base
Salary in effect on the date of a Change in Control and (II) is the
greater of the Executive's target bonus for the fiscal year in which
the Change in Control occurs or the average of the annual bonus (in
either case, where applicable, a Bonus) payable with respect to the
two fiscal years immediately preceding a Change in Control.
(b) "Base Salary" shall mean the Executive's annualized
base rate of pay with the Company.
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(c) "Beneficiary" shall mean the person or persons named
by the Executive pursuant to Section 12 hereof or, in the event no
such person is named or survives the Executive, his estate.
(d) "Board" shall mean the Board of Directors of the
Company.
(e) "Cause" shall mean:
(I) dishonesty by Executive which results in
substantial personal enrichment at the expense of the Company;
or
(II) demonstratively willful repeated violations
of Executive's obligations under this Agreement which are
intended to result in material injury to the Company.
(f) "Change in Control" shall mean any of (I) any
"person", within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other than any
employee or Subsidiary of the Company or any employee benefit plan (or
related trust) becomes the beneficial owner (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of securities of the
Company representing 30% or more of the combined voting power of the
Company's then outstanding voting securities; (II) the Company is
merged or consolidated with another person and as a result of such
merger or consolidation less than 70% of the outstanding voting
securities of the surviving or resulting person or parent thereof
shall then be owned in the aggregate by the stockholders of the
Company immediately prior to such merger or consolidation; (III) at
any time after June 30, 1996, individuals who constituted the Board of
Directors on such date (including, for this purpose, any new director
whose election or nomination for election by the Company's
stockholders was approved by a vote of at least three-fourths of the
directors in office on such date) cease for any reason to constitute
at least a majority of the Board of Directors; (IV) the consummation
of a sale of substantially all of the assets of the Company; or (V)
the Company's adoption of a plan of liquidation. A Change in Control
shall also include any series of transactions occurring during the
term of this Agreement which result in any of the changes described
above.
(g) "Confidential Information" shall mean information
about the Company or any of its Subsidiaries or their respective
businesses, products and practices, disclosed to or known or obtained
by Executive as a direct or indirect consequence of or through the
Executive's employment with the Company, which information is not
generally known in the business in which the Company or such
Subsidiaries are or may be engaged. However, Confidential Information
shall not include under any circumstances any information with respect
to the foregoing matters which is (I) available to the public from a
source other than the Executive, (II) released in writing
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by the Company to the public or to persons who are not under a similar
obligation of confidentiality to the Company and who are not parties
to this Agreement, (III) obtained by the Company from a third party
not under a similar obligation of confidentiality to the Company, (IV)
required to be disclosed by any court process or any government or
agency or department of any government, or (V) the subject of a
written waiver executed by the Company for the benefit of the
Executive.
(h) "Constructive Termination Without Cause" shall mean a
termination of the Executive's employment at his initiative as
provided in Section 2 following the occurrence, without the
Executive's prior written consent, of one or more of the following
events:
(I) any failure by the Company to comply with any
of the provisions of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(II) any reduction in any form of compensation,
fringe benefit, deferred compensation plan or perquisite
applicable to the Executive immediately prior to a Change in
Control, including any reduction in salary or any reduction in
bonus to less than the average of such bonus for the two
fiscal years immediately preceding a Change in Control;
(III) the loss of any of the Executive's titles or
positions in effect at the time of a Change in Control;
(IV) any change in the position to which the
Executive reports or the positions that report to the
Executive at the time of a Change in Control (reporting
relationships);
(V) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting
relationships), authority, duties or responsibilities as in
effect on the date of a Change in Control, or any other action
by the Company which results in a diminution in such position,
authority, duties or responsibilities excluding an isolated,
insubstantial and inadvertent action not taken in bad faith
and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
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(VI) the relocation of the Executive's office
location as assigned to him by the Company, to a location more
than 25 miles from his office location at the time of a Change
in Control;
(VII) any purported termination by the Company of
the Executive's employment otherwise than as expressly
permitted by this Agreement for Cause;
(VIII) any failure by the Company to comply with and
satisfy Section 7 of this Agreement, provided that the
successor contemplated by Section 7 has received, at least 10
days prior to the giving of notice of constructive termination
by the Executive, written notice from the Company or the
Executive of the requirements of Section 7 of the Agreement;
(IX) the removal or election or employment of any
officer or employee of the Company without Executive's
concurrence;
(X) failure to reelect Executive as both a member
of the Board and the Chairman of the Board or the removal of
Executive as a member of the Board or as Chairman of the
Board.
For purposes of this Section 1(h), any good faith determination of
"Constructive Termination Without Cause" made by the Executive shall
be conclusive.
(i) "Effective Date" shall mean July 19, 1996
(j) "Initial Term" shall mean the two-year period
commencing on the Effective Date.
(k) "Subsidiary" shall mean any corporation in which the
Company either (I) controls more than 50% of the voting power of all
securities of such corporation or (II) owns more than 50% of the total
value of all equity securities of such corporation.
(l) "Termination Benefits" shall mean:
(I) an amount equal to the product of (A) Annual
Compensation times (B) 1.0176;
(II) immediate vesting and exercisability of all
of the Executive's options to purchase securities of the
Company outstanding at the time of the Executive's termination
without Cause or
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Constructive Termination Without Cause, notwithstanding any
contrary provisions of such options or any plans pursuant to
which they are granted; and
(III) at Executive's election, and subject to
Executive's payment on a monthly basis of the applicable
premiums set forth on Schedule A, continued medical, dental
and life insurance coverage in each case for two years
following the date of the Executive's termination without
Cause or Constructive Termination Without Cause as though the
Executive's employment were continued in effect during such
time and without regard to any benefit reductions implemented
after the date of such termination; provided that Executive
may elect to receive one or more of such coverages and not the
others.
If the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), would otherwise be imposed with
respect to any payments in the nature of compensation made pursuant to
this Agreement or otherwise, and if a reduction of such payments would
yield a greater after-tax benefit to the Executive, then such payments
shall be reduced in the manner and order specified by the Executive in
order that the Executive receive a greater after-tax benefit by reason
of elimination of an amount of such payment sufficient to avoid the
excise tax. A final determination as to the amount of the Termination
Benefit payment set forth in subsection (I) above, the value of the
other Termination Benefits and the excise tax under Section 4999 of
the Code, as well as any reduction thereof shall be contingent upon
the express approval of the Executive, which approval shall not be
unreasonably withheld. Executive's approval shall not be treated as
unreasonably withheld if counsel of Executive's selection advises that
the proposed reduction of such payments would not clearly result in an
increase in the after-tax benefit to Executive.
(m) "Term" shall mean the term of this Agreement as
described in Section 19.
2. Events Triggering Termination Benefits: In the event, within
three years following a Change in Control occurring during the Initial Term,
the Executive's employment is terminated by the Company without Cause or there
is a Constructive Termination Without Cause, then the Executive shall be
entitled to receive the Termination Benefits. The Termination Benefit
described in Section 1(l)(I) shall be paid immediately upon such termination in
a cash lump sum. The failure of the Executive to effect a Constructive
Termination Without Cause as to any one event described in Section 1(h) shall
not affect his entitlement to effect a Constructive Termination Without Cause
as to any other such event.
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3. No Mitigation; No Offset: In the event of a termination of
employment under Section 2 of this Agreement, the Executive shall be under no
obligation to seek other employment, and there shall be no offset against the
Termination Benefits due the Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that he may obtain.
4. Consulting After Termination of Employment; Covenant Not To
Compete:
(a) In the event of a termination of Executive's
employment under circumstances entitling Executive to receive the
Termination Benefits as described in Section 2, Executive agrees to
provide consulting services to the Company in accordance with the
provisions of this Section 4. The term of such consulting services
shall be two years. For the first year of consulting, the Company
shall pay Executive $9,690.00 per month, in advance. For the second
year of consulting, the Company shall pay to Executive $9,690.00 per
month, in advance. In consideration of such payments, the Executive
shall be obligated to provide up to, but not more than, (I) in the
first year of consulting, thirty days per year, and (II) in the second
year of consulting, not more than thirty days per year. Payments
described in this Section 4(a) shall be made to the Executive whether
or not the Company calls upon Executive to render any consulting
services. The consulting services required of Executive pursuant to
this Agreement shall be with respect to those matters and in the areas
of expertise that were within the scope of Executive's employment
pursuant to this Agreement and Executive shall not be required to
perform services not fairly comprehended as within the scope of
services as herein defined. Any request by Company to Executive to
render consulting services shall be upon a reasonable advance notice
and the Company shall exercise such call in good faith in order to
minimize interference with Executive's other duties, responsibilities
or endeavors. In preparation for and while performing consulting
services at the request of the Company, Executive shall be reimbursed
for all reasonable expenses incurred, promptly upon presentation of
documentation thereof to the Company; provided, however, that Company
shall advance to Executive at his request, subject to the Executive's
obligation to subsequently submit the appropriate documentation,
advances to cover anticipated travel expenses, including
transportation and hotel, for travel requested by the Company. While
serving as a consultant, Executive shall be provided indemnification
and insurance with respect to his efforts substantially in accordance
with that provided under Section 5 hereof, determined as if Executive,
in performing the consulting services, had been an employee of the
Company.
(b) In the event of a termination of Executive's
employment under circumstances entitling Executive to receive the
Termination Benefits as described in Section 2, Executive agrees, for
period of two years following the termination of his employment, not
to engage in, invest in or render services to any person or entity
engaged in the businesses in which the Company or any Subsidiary of
the Company are then engaged within the United States of America,
whether in his own behalf or
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as a partner, officer, director, employee, agent or stockholder (other
than as a holder of less than 5% of the outstanding capital stock of
any corporation with a class of equity security registered under
Section 12(b) or Section 12(g) of the Securities Exchange Act of 1934,
as amended). The Company shall pay to Executive, in advance, for and
in respect of this non-competition covenant, the amount of $650,000.
5. Indemnification/Insurance:
(a) The Company agrees to indemnify the Executive to the
fullest extent permitted by applicable law consistent with the
Company's Certificate of Incorporation in effect as of the Effective
Date with respect to any acts or non-acts he may have committed during
the period during which he was an officer, director and/or employee of
the Company or any Subsidiary thereof, or of any other entity of which
he served as an officer, director or employee at the request of the
Company.
(b) The Company agrees to obtain a directors' and
officers' liability insurance policy covering the Executive and to
continue and maintain such policy. The amount of coverage provided
for Executive shall be reasonable in relation to the Executive's
position and responsibilities during his employment during the Term.
(c) The obligations of the Company as set forth in parts
(a) and (b) of this Section shall survive the Executive's termination
of employment and any termination of this Agreement (whether such
termination is by the Company, by the Executive, upon the expiration
of this Agreement or otherwise) with respect to any acts or omissions
that occurred prior to the Executive's termination of employment or
termination of this Agreement.
6. Effects of Agreement on Other Benefits and Rights of
Executive: Except as otherwise provided in this Section 6, nothing in this
Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive
may have under any contract or agreement with the Company or any of its
affiliated companies. Amounts which are vested benefits or which the Executive
is otherwise entitled to receive under any plan, policy, practice or program of
or any contract or agreement with the Company or any of its affiliated
companies at or subsequent to any termination pursuant to Section 2 shall be
payable in accordance with such plan, policy, practice or program or contract
or agreement except as explicitly modified by this Agreement. Notwithstanding
the foregoing or any provision to the contrary in the employment agreement
described below, in the event of a termination of employment as described in
Section 2 hereof, the Termination Benefits shall be in lieu of any amounts
payable to the Executive under that certain employment agreement between the
Executive and the Company dated October 26, 1995 as a consequence of such
termination.
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7. Assignability; Binding Nature: This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective
successors, heirs (in the case of the Executive) and assigns. No obligations
of the Company under this Agreement may be assigned or transferred by the
Company except that such obligations shall be assigned or transferred (as
described below) pursuant to a merger or consolidation in which the Company is
not the continuing entity, or the sale or liquidation of all or substantially
all of the assets of the Company, provided that the assignee or transferee is
the surviving entity or successor to all or substantially all of the assets of
the Company and such assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either
contractually or as a matter of law. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
8. Representation: The Company presents and warrants that it is
fully authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
agreement between the Company and any other person or entity.
9. Entire Agreement: Except to the extent otherwise provided
herein, this Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes any prior
agreement.
10. Amendment or Waiver: No provision in this Agreement may be
amended unless such amendment is agreed to in writing and signed by both the
Executive and an authorized officer of the Company. No waiver by either Party
of any breach by the other Party of any condition or provision contained in
this Agreement to be performed by such other Party shall be deemed a waiver of
a similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive or
an authorized representative of the Company, as the case may be.
11. Severability: In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement shall
be unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
12. Beneficiaries/References: The Executive shall be entitled to
select (and change, to the extent permitted under any applicable law) a
beneficiary or beneficiaries to receive any compensation or benefit payable
hereunder following the Executive's death by giving the Company written notice
thereof. In the event of the Executive's death or a judicial determination of
his incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
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13. Governing Law/Jurisdiction: This Agreement shall be governed
by and construed and interpreted in accordance with the laws of Missouri
without reference to principles of conflict of laws.
14. Disputes:
(a) All costs, fees and expenses including attorney fees,
of any arbitration or litigation in connection with this Agreement
which results in any decision or settlement requiring the Company to
make a payment to the Executive, including, without limitation,
attorneys' fees of both the Executive and the Company, shall be borne
by, and be the obligation of, the Company. In no event shall the
Executive be required to reimburse the Company for any of the costs or
expenses, including attorney's fees, incurred by the Company relating
to arbitration or litigation. The obligation of the Company under
this Section 14 shall survive the termination for any reason of this
Agreement (whether such termination is by the Company, by the
Executive, upon the expiration of this Agreement or otherwise).
(b) In the event that any person asserts that any of the
payments or benefits provided to or in respect of Executive pursuant
to this Agreement or otherwise, by or on behalf of the Company, are
subject to excise taxes under Section 4999 of the Code, the Company
shall assume the cost of dispute with such person incurred by or on
behalf of the Executive until such time as Executive agrees, which
agreement shall not be unreasonably withheld, that pursuit of that
dispute is not prudent.
(c) Pending the outcome or resolution of any litigation
or arbitration, the Company shall continue payment of all amounts due
the Executive without regard to any dispute.
15. Notices: Any notice given to either Party shall be in writing
and shall be deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested, duly
addressed to the Party concerned at the address indicated below or to such
changed address as such Party may subsequently give such notice of:
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If to the Company or the Board:
Thermadyne Holdings Corporation
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
ATTENTION: Chief Executive Officer
If to the Executive:
Xx. Xxxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
16. Confidential Information:
(a) Non-Disclosure: During the Term or at any time
thereafter, irrespective of the time, manner or cause of the
expiration of the Term, Executive will not directly or indirectly
reveal, divulge, disclose or communicate to any person or entity,
other than authorized officers, directors and employees of the
Company, in any manner whatsoever, any Confidential Information
without the prior written consent of the Board.
(b) Return of Property: Upon the Executive's termination
of employment, Executive will surrender to the Company all
Confidential Information, including without limitation, all lists,
charts, schedules, reports, financial statements, books and records of
the Company or any Subsidiary, and all copies thereof, and all other
property belonging to the Company or any Subsidiary, provided
Executive shall be accorded reasonable access to such Confidential
Information subsequent to the Executive's termination of employment
for any proper purpose as determined in the reasonable judgment of the
Company.
17. Headings: The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
18. Counterparts: This Agreement may be executed in two or more
counterparts.
19. Term of Agreement: This Agreement shall remain in effect for
the Initial Term and thereafter to the extent necessary to maintain this
Agreement in effect for a period of 36 months following any Change in Control
during the Initial Term. In addition, the respective rights and obligations of
the Parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
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IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first written above.
THERMADYNE HOLDINGS CORPORATION
By /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Senior Vice President
EXECUTIVE
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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