AMENDMENT REGARDING IRC § 409A TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.28
The Executive Employment Agreement (“Agreement”) entered into on June 2003, by and among
Thermadyne Holdings Corporation (“Holdings”), a Delaware corporation, and any and all the wholly
owned subsidiaries of Holdings (collectively, “Employers”), and Xxxxx Xxxxxx (“Employee”), is
hereby amended as follows, effective the later of January 1, 2005 or the date of the Agreement, such
that, consistent with the intent of the parties, the Agreement will comply with relevant provisions
of Section 409A of the Internal Revenue Code of 1986, as amended:
1. Capitalized terms used in this Amendment without definition have the meanings set forth in
the Agreement.
2. Notwithstanding any term or condition in the Agreement to the contrary:
If the Employee is a “specified employee” (within the meaning of Section 409(a)(2)(B)(i) of
the Internal Revenue Code of 1986, as amended, (“Code”)) at the time of his termination of
employment with the Employers and is entitled to payments under the Agreement which are on
account of “involuntary separation of service” within the meaning of Treasury Regulation
Section 1.409A-1 (n), amounts payable to the Employee, notwithstanding anything in this
Agreement to the contrary, during the first six (6) consecutive months immediately following
the month in which such termination of employment occurs shall be suspended after the total
of such payments equal the lesser of the amount specified under Treasury Regulation
1.409A-l(a)(9)(iii)(A)(l) or (2). If the Employee is such a “specified employee” at the time
of his termination of employment with the Employers and is entitled to payments under the
Agreement which are not on account of such “involuntary separation of service”, amounts
payable to the Employee, notwithstanding anything in this Agreement to the contrary, during
the first six (6) consecutive months immediately following the month in which such
termination of employment occurs shall be suspended. To the extent such payments payable
during such six (6) month period are suspended as provided herein, such amounts shall be
paid in a single sum as of the first regular payroll date of the applicable entity of
Holdings, immediately following the last day of the sixth consecutive month immediately
following the month in which such termination of employment occurs, along with interest on
such suspended amounts at the rate of twelve percent (12%) per annum from the date such
amounts would have otherwise been paid but to the date they are paid. Payments otherwise
payable after such six (6) month period shall be made as otherwise provided in this
Agreement.
3. Notwithstanding any inconsistent provision in the Agreement, the Employee’s expense account
reports must be submitted no later than January 31 immediately following the calendar year in
which his termination of employment with the Employers occurs and such reimbursements must be
paid no later than March 15 immediately following the calendar year in which such termination
of employment occurs.
4.
To the extent that (a) the Agreement affords Employee the right to elect the timing for
distribution of payments for termination of employment described herein and (b) an election is
required under Section 409(a) of the Code and applicable regulations to avoid penalties or
excise taxes, Employee hereby elects payment in a lump sum, in accordance with the applicable
law and/or regulations.
5. This Amendment may be executed in multiple counterparts, .each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of this 31st
day of December, 2008.
EMPLOYEE: |
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/s/ Xxxxx Xxxxxx
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EMPLOYERS: |
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Thermadyne Holdings Corporation |
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(on behalf of itself and all wholly owned subsidiaries) |
By: |
/s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
Title: |
Vice President & General Counsel | |||
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES
MAY BE ENFORCED BY THE PARTIES
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