INDEMNIFICATION AGREEMENT
Exhibit 10.1
This INDEMNIFICATION AGREEMENT (the “Agreement”), is effective as of , 2007,
between Thermadyne Holdings Corporation, a Delaware corporation (the “Company”), and
(“Indemnitee”).
in good faith in the performance of Indemnitee’s duty to the Company; and Indemnitee desires
to continue so to serve the Company, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter;
Now, therefore, in consideration of Indemnitee’s willingness to serve or continue to serve as
a director or officer of the Company, the parties hereto agree as follows:
(a) to the extent expressly prohibited by the DGCL;
(b) for which payment is actually made to Indemnitee under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause, by-law or agreement of
the Company or any other company or organization on whose board Indemnitee serves at the
request of the Company, except in respect of any indemnity exceeding the payment under such
insurance policy, indemnity clause, by-law or agreement;
(c) for prosecution of a claim brought by Indemnitee in an action, suit or proceeding,
or part thereof, initiated by Indemnitee, except a judicial proceeding or arbitration
pursuant to Section 10 below to enforce rights under this Agreement, unless the action, suit
or proceeding (or part thereof) was authorized by the Board of Directors of the Company;
(d) with respect to any action, suit or proceeding brought by or on behalf of the
Company against Indemnitee that is authorized by the Board of Directors of the Company,
except as provided in Sections 4, 5, 6 and 10 below;
(e) to indemnify Indemnitee on account of any proceeding if and to the extent that
final judgment is rendered against Indemnitee for payment or an accounting of profits
arising from the purchase or sale by Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or any similar successor statute; or
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(f) to indemnify Indemnitee in connection with proceedings or claims involving the
enforcement of non-compete and/or non-disclosure agreements or the non-compete and/or
non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may
be a party to with the Company, or any subsidiary of the Company or any other applicable
foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if
any.
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outstanding shares of stock of all classes entitled to vote on the matter, voting as a single
class, which quorum shall consist of stockholders who are not at that time parties to the action,
suit or proceeding in question. Other than in case of a Change of Control (other than a Change in
Control which has been approved by a majority of the Company’s Board of Directors who were
directors immediately prior to such Change in Control), such Independent Counsel shall be selected
by the Board of Directors and approved by Indemnitee. Upon failure of the Board so to select such
Independent Counsel or upon failure of Indemnitee so to approve, such Independent Counsel shall be
selected by lot from among the ten (10) law firms which, according to publicly available sources,
have the most lawyers practicing in offices located in St. Louis, Missouri (excluding firms that,
in any of their offices, have acted as counsel for the Company or Indemnitee or any other party to
the action, suit or proceeding or any affiliate of such person). Such determination of entitlement
to indemnification shall be made not later than 30 calendar days after receipt by the Company of a
written request for indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to Indemnitee. Any Expenses
incurred by Indemnitee in connection with a request for indemnification or payment of Expenses
hereunder, under any other agreement, any provision of the Charter Documents or any directors’ and
officers’ liability insurance, shall be borne by the Company. The Company hereby indemnifies
Indemnitee for any such Expense and agrees to hold Indemnitee harmless therefrom irrespective of
the outcome of the determination of Indemnitee’s entitlement to indemnification. If the person
making such determination shall determine that Indemnitee is entitled to indemnification as to part
(but not all) of the application for indemnification, such person shall reasonably prorate such
partial indemnification among the claims, issues or matters at issue at the time of the
determination.
The Company agrees that if there is a Change in Control of the Company (other than a Change in
Control which has been approved by a majority of the Company’s Board of Directors who were
directors immediately prior to such Change in Control) then the entitlement of Indemnitee with
respect to all matters thereafter arising concerning the rights of Indemnitee to indemnity payments
under this Agreement or any other agreement or Charter Document now or hereafter in effect relating
to events indemnifiable under this Agreement, shall be determined by Independent Counsel in a
written opinion. In case of a Change of Control (other than a Change in Control which has been
approved by a majority of the Company’s Board of Directors who were directors immediately prior to
such Change in Control), Independent Counsel shall be selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld). If Indemnitee and the Company are
unable to agree on the selection of Independent Counsel, such Independent Counsel shall be selected
by lot from among the ten (10) law firms which, according to publicly available sources, have the
most lawyers practicing in offices located in St. Louis, Missouri (excluding firms that, in any of
their offices, have acted as counsel for the Company or Indemnitee or any other party to the
action, suit or proceeding or any affiliate of such person). Independent Counsel, among other
things, shall render its written opinion to the Company and Indemnitee as to whether and to what
extent the Indemnitee would be permitted to be indemnified. The Company agrees to pay the
reasonable fees of the Independent Counsel referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
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10. Remedies of Indemnitee in Cases of Determination not to Indemnify or not to Pay
Expenses or Other Failure to Indemnify or Pay Expenses. In the event that a determination is
made that Indemnitee is not entitled to indemnification hereunder or if payment has not been timely
made following a determination of entitlement to indemnification pursuant to Sections 8 and 9
above, or if Expenses are not paid pursuant to Section 15 below, Indemnitee shall be entitled to
final adjudication in a court of competent jurisdiction of entitlement to such indemnification or
payment. Alternatively, Indemnitee at Indemnitee’s option may seek an award in an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American Arbitration Association,
such award to be made within sixty days following the filing of the demand for arbitration. The
Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration
or any other claim. The determination in any such judicial proceeding or arbitration shall be made
de novo and Indemnitee shall not be prejudiced by reason of a determination (if so made) pursuant
to Sections 8 or 9 that Indemnitee is not entitled to indemnification. If a determination is made
or deemed to have been made pursuant to the terms of Section 8 or 9 above that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination and is precluded from
asserting that such determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Company further agrees to
stipulate in any such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement and is precluded from making any assertions to the contrary. If the
court or arbitrator shall determine that Indemnitee is entitled to any indemnification or any
payment of Expenses hereunder, the Company shall pay all Expenses actually and reasonably incurred
by Indemnitee in connection with such adjudication or award in arbitration (including, but not
limited to, any appellate Proceedings).
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now or in the future be entitled under any provision of the Charter Documents or other
organizational documents of the Company, vote of stockholders or Disinterested Directors, provision
of law, agreement or otherwise. To the extent that a change in the DGCL (whether by statute or
judicial decision) permits greater indemnification by agreement than would be afforded currently
under the Charter Documents and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
(a) The Company shall be entitled to participate therein at its own expense; and
(b) Except as otherwise provided in this Section 14(b), to the extent that it may wish,
the Company, jointly with any other indemnifying party similarly notified, shall be entitled
to assume the defense thereof, with counsel satisfactory to Indemnitee. After notice from
the Company to Indemnitee of its election so to assume the defense thereof, the Company
shall not be liable to Indemnitee under this Agreement for any expenses of counsel
subsequently incurred by Indemnitee in connection with the defense thereof
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except as otherwise provided below. Indemnitee shall have the right to employ
Indemnitee’s own counsel in such Proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof and
engagement of counsel with respect thereto shall be at the expense of Indemnitee, unless (i)
the employment of counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee
or Indemnitee’s counsel shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of the defense of such action or
(iii) the Company shall not have delivered to Indemnitee, within a reasonable time before
the expiration of the time period allotted by law to Indemnitee to move, answer or otherwise
plead in response to the notice of the commencement of such Proceeding, notice of its
assumption of the defense thereof and engagement of counsel with respect thereto, in each of
which cases the fees and expenses of Indemnitee’s counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of any Proceeding brought
by or in the right of the Company or as to which Indemnitee shall have made the conclusion
provided for in (ii) above; and
(c) If the Company has assumed the defense of a Proceeding, the Company shall not be
liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Proceeding effected without the Company’s written consent. The Company shall not settle
any Proceeding in any manner that would impose any penalty or limitation on or disclosure
obligation with respect to Indemnitee without Indemnitee’s written consent. Neither the
Company nor Indemnitee will unreasonably withhold its consent to any proposed settlement.
16. Separability; Prior Indemnification Agreements. If any provision or provisions of
this Agreement (including any provision within a single section, paragraph or sentence) shall be
held to be invalid, illegal or unenforceable for any reason whatsoever (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not
in
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any way be affected or impaired thereby, and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
of the parties that the Company provide protection to Indemnitee to the fullest enforceable extent.
This Agreement shall supersede and replace any prior indemnification agreements entered into by and
between the Company and Indemnitee and any such prior agreements shall be terminated upon execution
of this Agreement.
17. Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for herein is held by a court of competent
jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed that, in such event,
the Company shall, to the fullest extent permitted by law, contribute to the payment of
Indemnitee’s Expenses, judgments, fines, or penalties actually levied against Indemnitee or amounts
paid in settlement by or on behalf of Indemnitee, in an amount that is just and equitable in the
circumstances, taking into account, among other things, contributions by other directors and
officers of the Company or others pursuant to indemnification agreements or otherwise; provided,
that, without limiting the generality of the foregoing, such contribution shall not be required
where such holding by the court is due to (i) the failure of Indemnitee to meet the standard of
conduct set forth in Section 3 or Section 4, as applicable, of this Agreement or (ii) any
limitation on indemnification set forth in Section 2 or 14(c) hereof.
(a) The Company covenants and agrees that, as long as Indemnitee shall be entitled to
indemnification under the terms of this Agreement, including Section 11 hereof, the Company,
subject only to paragraph (b) of this Section 18, shall obtain and maintain in full force and
effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from
established and reputable insurers covering Indemnitee against any liability asserted against or
incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the
Company would have the power to indemnify Indemnitee against such liability under this Agreement.
In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants
Indemnitee the same rights and benefits as are granted to the most favorably insured of the
Company’s officers or directors.
(b) Notwithstanding paragraph (a) of this Section 18, if the Company gives reasonable prior
written notice to Indemnitee of the termination of D&O Insurance coverage, the Company shall be
relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Company in good
faith determines that such insurance is not reasonably available in such future periods, or the
premium costs for such insurance are disproportionate to the amount of coverage available, or the
available coverage is so limited by exclusions that it provides an insufficient benefit, or
Indemnitee is covered by similar insurance maintained by a subsidiary of the Company.
(c) If the Company has D&O Insurance in effect at the time it receives a notice pursuant to
Section 14 hereof, the Company shall give due and prompt notice of the commencement of
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such Proceeding to the insurer(s) in accordance with the procedures set forth in the
applicable policy. The Company shall thereafter take all necessary or desirable action to cause
each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of the applicable policy.
(d) Anything herein or elsewhere to the contrary notwithstanding, the Company shall not be
liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract or agreement.
If to the Company:
Thermadyne Holdings Corporation
00000 Xxxxxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, XX 00000
00000 Xxxxxxxx Xxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: 000-000-0000
Facsimile: 000-000-0000
If to Indemnitee:
(a) “Change in Control” shall be deemed to have occurred if: (a) any person or group
of persons (within the meaning of the Securities Exchange Act of 1934), other than Xxxxxx,
Xxxxxx & Co., shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities Exchange Act of
1934) of 30% or more of the issued and outstanding shares of capital Stock of the Company
having the right to vote for the election of directors of the Company under ordinary
circumstances; (b) during any period of twelve consecutive calendar months, individuals who
at the beginning of such period constituted the board of directors of the Company (together
with any new directors whose election by the board of directors of the Company or whose
nomination for election by the stockholders of the
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Company was approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason other than death or
disability to constitute a majority of the directors then in office; or (c) a “Change of
Control” as defined in the Indenture.
(b) “Company” includes, without limitation and in addition to the resulting
corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or agents, so
that any person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving corporation as he or
she would have with respect to such constituent corporation if its separate existence had
continued.
(c) “Disinterested Director” means a director of the Company who is not or was not a
party to the Proceeding in respect of which indemnification is being sought by Indemnitee.
(d) “Expenses” includes, without limitation, expenses (including, without limitation,
interest, assessments and other charges) incurred in connection with the defense or
settlement of any and all investigations, judicial or administrative proceedings or appeals,
attorneys’ fees and expenses, witness fees and expenses, fees and expenses of accountants
and other advisors, retainers and disbursements and advances thereon, the premium, security
for, and other costs relating to any bond (including cost bonds, appraisal bonds, appeal
bonds or their equivalents), other out-of-pocket costs and reasonable compensation for time
spent by Indemnitee in connection with any Proceeding for which Indemnitee is not otherwise
compensated by the Company or any third party and any expenses of establishing a right to
indemnification under Sections 8, 10 and 12 above but shall not include the amount of
judgments, fines, or penalties actually levied against Indemnitee or amounts paid in
settlement by or on behalf of Indemnitee.
(e) “Indenture” means that certain Indenture dated as of February 5, 2004, as amended
by the Supplemental Indenture dated as of May 16, 2006 and the Second Supplemental Indenture
dated as of August 2, 2006, by and among the Company, as issuer of 9.25% Senior Subordinated
Notes due 2014 in an aggregate principal amount of $175,000,000 issued thereunder, the
subsidiary guarantors named therein and U.S. Bank National Association, as trustee.
(f) “Independent Counsel” means a law firm or a member of a law firm neither of which
is presently nor in the past ten (10) years has been retained to represent: (i) the Company
or Indemnitee in any matter material to either such party, or (ii) any other party
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to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s right to indemnification under this Agreement.
(f) “Proceeding” includes any threatened, pending or completed investigation, action,
suit or other proceeding, whether brought in the name or right of the Company or otherwise,
against Indemnitee, and whether of a civil, criminal, administrative or investigative
nature, including, but not limited to, actions, suits or proceedings in which Indemnitee may
be or may have been involved as a party or otherwise, by reason of the fact that Indemnitee
is or was a director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of any other entity, or by
reason of anything done or not done by Indemnitee in any such capacity, whether or not
Indemnitee is serving in such capacity at the time any liability or expense is incurred for
which indemnification or reimbursement can be provided under this Agreement.
(g) “Stock” means all shares, options, warrants, general or limited partnership
interests, membership interests or other equivalents (regardless of how designated) of or in
a corporation, partnership, limited liability company or equivalent entity whether voting or
nonvoting, including common stock, preferred stock or any other “equity security” (as such
term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934).
(a) This Agreement shall be interpreted and enforced in accordance with the laws of
Delaware, as applied to contracts between Delaware residents entered into and to be
performed entirely within Delaware.
(b) For purposes of any claims or proceedings to enforce this Agreement, the Company
consents to the jurisdiction and venue of any federal or state court of competent
jurisdiction in the states of Delaware and Missouri, and waives and agrees not to raise any
defense that any such court is an inconvenient forum or any similar claim.
(c) This Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall constitute one and
the same Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced as evidence of the existence of this
Agreement.
(d) This agreement shall not be deemed an employment contract between the Company and
any Indemnitee who is an officer of the Company, and, if Indemnitee is an officer of the
Company, Indemnitee specifically acknowledges that Indemnitee may be
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discharged at any time for any reason, with or without cause, and with or without
severance compensation, except as may be otherwise provided in a separate written contract
between Indemnitee and the Company.
(e) Upon a payment to Indemnitee under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of Indemnitee to recover against any
person for such liability, and Indemnitee shall execute all documents and instruments
required and shall take such other actions as may be necessary to secure such rights,
including the execution of such documents as may be necessary for the Company to bring suit
to enforce such rights. The Company shall pay or reimburse all expenses actually and
reasonably incurred by Indemnitee in connection with such subrogation.
(f) No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
SIGNATURE PAGE TO FOLLOW
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THERMADYNE HOLDINGS CORPORATION
By: | |||
Name: | |||
Title: |
INDEMNITEE
[Name] |
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