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EXHIBIT 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of May 22, 1998 (the
EFFECTIVE DATE") by and among Thermadyne Holdings Corporation, a Delaware
corporation ("HOLDINGS"), together with its subsidiaries as herein defined (all
called the "EMPLOYERS") and Xxxxx X. Xxxx ("EMPLOYEE").
WITNESSETH:
WHEREAS, Employers desire to continue to employ Employee upon the
terms set forth herein;
WHEREAS, Employee desires to continue to be employed by Employers and
to appropriately memorialize the terms and conditions of such employment;
WHEREAS, Holdings is entering into this Agreement by and on behalf of
itself and each trade or business in which its ownership and the value or
voting power is at least 50% (the "SUBSIDIARIES");
NOW THEREFORE, Employee and Employers, in consideration of the
agreements, covenants and conditions herein, hereby agree as follows:
SECTION 1. Basic Employment Provisions.
(a) Employment and Term. Employers hereby employ Employee
(hereinafter referred to as the "EMPLOYMENT") as Chief Financial Officer of
Holdings and Employee agrees to be employed by Employers in such capacity, all
on the terms and conditions set forth herein. The Employment shall be for a
period (the "EMPLOYMENT PERIOD") that will (i) commence on the Effective Date
and continue for at least three years thereafter (unless earlier terminated as
provided herein) and (ii) renew on each anniversary of the Effective Date for a
three-year period, on the same terms and conditions contained herein (unless
earlier terminated as provided herein or Employee is timely provided a notice
of nonrenewal as provided herein), such that the Employment Period shall extend
for a period of three years from the date of each such extension. The
Employers must provide Employee with written notice not less than 60 days in
advance of the applicable anniversary of the Effective Date in order to avoid
renewal of the Employment Period on such anniversary as described above. Notice
shall be deemed given on the date it is received by the Employee.
(b) Duties. Employee shall be subject to the direction and
supervision of the Board of Directors of Holdings (the "BOARD") and, as the
Chief Financial Officer of Holdings, shall have those duties and
responsibilities which are
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assigned to him during the Employment Period by the Board consistent with his
positions, provided that the Board shall not assign any greater duties or
responsibilities to the Employee than are necessary to the Employee's faithful
and adequate supervision of the overall management and businesses of the
Employers. The Board shall not take any action which results in a diminution
of Employee's position, authority, duties or responsibilities as of the date
hereof. The parties expressly acknowledge that the Employee shall devote all
of his business time and attention to the transaction of the Employer's
businesses as is reasonably necessary to discharge his supervisory management
responsibilities hereunder. Employee agrees to perform faithfully the duties
assigned to him to the best of his ability.
SECTION 2. Compensation.
(a) Salary. Employers shall pay to Employee during the Employment
Period a salary as basic compensation for the services to be rendered by
Employee hereunder. The initial amount of such salary shall be $290,175 per
annum. Such salary shall be reviewed no less frequently than annually by the
Board and may be increased upon the approval of the Board in its sole
discretion. Such salary shall accrue and be payable in accordance with the
payroll practices of Employers' subsidiary or subsidiaries in effect from time
to time. All such payments shall be subject to deduction and withholding
authorized or required by applicable law.
(b) Bonus. During the Employment Period, Employee shall
additionally participate in an annual bonus plan providing for an annual bonus
opportunity of not less than 75% of Employee's annual salary.
(c) Benefits. During the Employment Period, Employee shall be
entitled to participate in such other employee benefit plans, programs and
arrangements as are customarily accorded the executives of Employers, including
without limitation, tax qualified profit sharing and retirement plans, group
life, hospitalization and other insurance and vacations (but excluding stock
option and other stock- or equity-based compensation plans), on a basis no less
favorable than as of the date of this Agreement. Without limiting the
foregoing, the employee benefit plans, programs and arrangements in which
Employee shall be entitled to participate during the Employment Period shall be
no less generous, in the aggregate, than those in which such Employee was
entitled to participate immediately prior to the consummation of the merger
between Holdings and Mercury Acquisition Corporation.
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SECTION 3. Termination.
(a) Death or Disability. Employment of Employee under this
Agreement shall terminate automatically upon the death or total disability of
Employee. For the purpose of this Agreement, "TOTAL DISABILITY" shall be
deemed to have occurred if Employee shall have been unable to perform the
duties of his Employment due to mental or physical incapacity for a period of
six (6) consecutive months.
(b) Cause. The Board may terminate the Employment of Employee
under this Agreement for Cause. For the purposes of this Agreement, "CAUSE"
shall be deemed to be (i) dishonesty by Employee that results in substantial
personal enrichment at the expense of the Employers or (ii) demonstratively
willful repeated violations of Employee's obligations under this Agreement
which are intended to result in material injury to the Employers.
(c) Without Cause. Any of the Employers, acting alone, may
terminate the Employment of Employee under this Agreement without Cause.
(d) Constructive Termination. Employee may elect to terminate his
Employment under this Agreement upon a Constructive Termination Without Cause,
as defined below. For purposes of this Agreement, "CONSTRUCTIVE TERMINATION
WITHOUT CAUSE" shall mean a termination of the Employee's employment at his
initiative following the occurrence, without the Employee's prior written
consent, of one or more of the following events:
(i) receipt of notice from the Employers that the Employment
Period shall not be renewed as described in Section 1(a) above;
(ii) any failure by the Employers to comply with any of the
provisions of the Employment Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Employers promptly after receipt of notice
thereof given by the Employee;
(iii) any reduction in any form of compensation, fringe
benefit, deferred compensation plan or perquisite applicable to the
Employee immediately prior to the effective time of the Employment
Agreement, including any reduction in salary or any reduction in bonus
percentage to less than the average of such bonus percentage for the
two fiscal years immediately preceding the effective time of the
Employment Agreement;
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(iv) the loss of any of the Employee's titles or positions in
effect at the effective time of the Employment Agreement;
(v) any change in the position to which the Employee reports
or the positions that report to the Employee at the effective time of
the Employment Agreement (reporting relationships);
(vi) the assignment to the Employee of any duties inconsistent
in any respect with the Employee's position (including status,
offices, titles and reporting relationships), authority, duties or
responsibilities as in effect at the effective time of the Employment
Agreement, or any other action by the Employers 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 Employers promptly after
receipt of notice thereof given by the Employee;
(vii) the relocation of the Employee's office location as
assigned to him by the Employers, to a location more than 25 miles
from his office location at the effective time of the Employment
Agreement;
(viii) any purported termination by the Employers of the
Employee's employment otherwise than as expressly permitted by Section
3(b) of this Agreement;
(ix) any failure by the Employers to comply with and satisfy
the provisions of Section 6 hereof, or failure by 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 Employers to assume expressly and agree to perform the
Employment Agreement in the same manner and to the same extent the
Employers would be required to perform it if no such succession had
taken place, provided, in either case, that the successor contemplated
by Section 6 hereof has received, at least 10 days prior to the giving
of notice of constructive termination by the Employee, written notice
from the Employers or the Employee of the requirements of the
provisions of Section 6 or of such failure;
(x) failure to reelect Employee as a member of the Board of
Directors or the removal of Employee as a member of the Board; and
(xi) the removal or Constructive Termination without cause of
the person who serves as Chairman of the Board or the person who
serves as Chief Executive Officer of Holdings at the effective time of
the Employment Agreement from either such position.
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For purposes of this Agreement any good faith determination of "Constructive
Termination Without Cause" made by the Employee shall be conclusive.
SECTION 4. Compensation Following Termination.
(a) Death or Disability. If the Employment Period is terminated
pursuant to the provisions of Section 3(a) above, this Agreement shall
terminate, and no further compensation shall be payable to Employee except that
Employee or Employee's estate, heirs or beneficiaries, as applicable, shall be
entitled, in addition to any other benefits to which Employee is or may become
entitled under any benefit plan, to receive Employee's then current basic
compensation, plus an amount in lieu of bonus, which amount shall be determined
as the average bonus received by Employee for the appropriate period (prorated
for partial portions thereof) for the previous 24 months hereunder and all
other benefits to which Employee would otherwise be entitled hereunder during
the Employment Period for a period of 24 months from the date the Employment
Period terminates.
(b) Termination for Cause or Voluntary Termination. If the
Employment Period is terminated for Cause or voluntarily by the Employee for
reasons other than those described in Section 3(a) or 3(d) above, no further
compensation or benefits shall be paid to Employee after the date of
termination, but Employee shall be entitled to receive benefits to which he is
or may become entitled pursuant to any benefit plan.
(c) Termination Without Cause; Constructive Termination. If the
Employment Period is terminated pursuant to Section 3(c) or 3(d) above,
Employee shall be entitled to continue to receive from Employers his then
current basic compensation hereunder, plus an amount in lieu of bonus, which
amount shall be determined as the average bonus received by Employee for the
appropriate period (prorated for partial portions thereof) for the previous 24
months, such amount to continue to be paid in accordance with the payroll
practices of Employers for a period equal to the period remaining in the
Employment Period immediately prior to such termination and Employee shall
further be entitled during such period both to continue to receive the benefits
to which he would otherwise be entitled during the Employment Period pursuant
to Section 2(c) above and to reimbursement for expenses incurred by Employee to
own and maintain an automobile as contemplated by Section 5 below. Such
continuation of compensation, benefits and automobile expenses shall continue
for the period described above notwithstanding any earlier death or
reemployment of Employee.
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SECTION 5. Expense Reimbursement. Upon the submission of properly
documented expense account reports, Employers shall reimburse Employee for all
reasonable business-related travel and entertainment expenses incurred by
Employee in the course of his Employment with Employers and for expenses
incurred by Employee to own and maintain an automobile.
SECTION 6. Assignability; Binding Nature. This Agreement shall be
binding and inure to the benefit of the parties, and their respective
successors, heirs (in the case of Employee) and assigns. No obligations of the
Employers under this Agreement may be assigned or transferred by the Employers
except that such obligations shall be assigned or transferred (as described
below) pursuant to a merger or consolidation of Holdings in which Holdings is
not the continuing entity, or the sale or liquidation of all or substantially
all of the assets of the Employers, provided that the assignee or transferee is
the surviving entity or successor to all or substantially all of the assets of
the Employers and such assignee or transferee assumes the liabilities,
obligations and duties of the Employers, as contained in this Agreement, either
contractually or as a matter of law. As used in this Agreement, the
"Employers" and "Holdings" shall mean the Employers and Holdings as
hereinbefore defined, respectively, and any successor to their business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
SECTION 7. Confidential Information.
(a) Non-Disclosure. During the Employment Period or at any time
thereafter, irrespective of the time, manner or cause of the termination of
this Agreement, Employee will not directly or indirectly reveal, divulge,
disclose or communicate to any person or entity, other than authorized
officers, directors and employees of the Employers, in any manner whatsoever,
any Confidential Information (as hereinafter defined) of Employers or any
subsidiary of Employers without the prior written consent of the Board.
(b) Definition. As used herein, "CONFIDENTIAL INFORMATION" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through the Employment about Employers or any subsidiary of
Employers, or their respective businesses, products and practices which
information is not generally known in the business in which Employers or any
subsidiary of Employers is 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 Employee, (ii) released in writing by Employers to the public
or to persons who are not under a similar obligation of confidentiality to
Employers and who are not parties to this Agreement, (iii) obtained by Employee
from a third
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party not under a similar obligation of confidentiality to Employers, (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 either Employers for the benefit of Employee.
(c) Return of Property. Upon termination of the Employment,
Employee will surrender to Employers all Confidential Information, including
without limitation, all lists, charts, schedules, reports, financial
statements, books and records of the Employers or any subsidiary of the
Employers, and all copies thereof, and all other property belonging to the
Employers or any subsidiary of the Employers, provided Employee shall be
accorded reasonable access to such Confidential Information subsequent to the
Employment Period for any proper purpose as determined in the reasonable
judgment of any of the Employers.
SECTION 8. Agreement Not to Compete.
(a) Termination for Cause. In the event that the Employee is
terminated for Cause or voluntarily terminates his Employment with Employers
other than as a constructive termination, Employee hereby agrees that for a
period of one (1) year following such termination, he shall not, either in his
own behalf or as a partner, officer, director, employee, agent or shareholder
(other than as the 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) engage in,
invest in or render services to any person or entity engaged in the businesses
in which Employers or any subsidiary of Employers are then engaged and situated
within any country. Nothing contained in this Section 8(a) shall be construed
as restricting the Employee's right to sell or otherwise dispose of any
business or investments owned or operated by Employee as of the date hereof.
(b) Termination Without Cause or for Disability; Constructive
Termination. In the event that the Employment of Employee is terminated by
Employers without Cause or as a result of the total disability of Employee or
by Employee as a constructive termination, Employee hereby agrees that during
the period that Employee accepts payments from the Employers pursuant to
Section 4(a) or Section 4(c) above, as applicable, neither he nor any affiliate
shall, either in his own behalf or as a partner, officer, director, employee,
agent or shareholder (other than as the 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) engage in, invest in or render services to any person or
entity engaged in the businesses in which Employers or any subsidiary of
Employers is then engaged and situated within any country. Nothing contained in
this Section 8(b) shall be construed as
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restricting the Employee's right to sell or otherwise dispose of any business
or investments owned or operated by Employee as of the date hereof. In the
event of Employee's violation of the provisions of Section 8(b), the right of
Employee to receive any further payment pursuant to Section 4(a) or 4(c) above,
as applicable, shall immediately terminate and the Employers shall be entitled
to secure reimbursement from Employee for all payments made to Employee
subsequent to the date of any such violation. The parties hereto hereby
acknowledge and agree that the provisions of the immediately preceding sentence
shall be the sole and exclusive remedy of the Employers in respect of any
violation of this Section 8(b).
SECTION 9. Agreement Not to Solicit Employees. Employee agrees that,
for a period of three (3) years following the termination of the Employment
Period, other than by Employers without Cause or as a result of the total
disability of Employee or by Employee as a constructive termination, and only
by reason of voluntary termination or termination for Cause, neither he nor any
affiliate shall, on behalf of any business engaged in a business competitive
with Employers or any subsidiary of Employers, solicit or induce, or in any
manner attempt to solicit or induce, any person employed by, or any agent of,
either of Employers or any subsidiary of Employers to terminate his employment
or agency, as the case may be, with either of Employers or such subsidiary;
provided that such limitations shall not apply if the contact with the Employee
or consultant is initiated by a third party on a "blind basis" such as through
a head hunter.
SECTION 10. No Violation. Employee hereby represents and warrants to
Employers that the execution, delivery and performance of this Agreement by
Employee does not, with or without the giving of notice or the passage of time,
or both, conflict with, result in a default, right to accelerate or loss of
rights under any provision of any agreement or understanding to which the
Employee or, to the best knowledge of Employee, any of Employee's affiliates
are a party or by which Employee, or to the best knowledge of Employee,
Employee's affiliates may be bound or affected.
SECTION 11. Captions. The captions, headings and arrangements used in
this Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
SECTION 12. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed delivered, whether or not
actually received, two days after deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the party to whom notice is being given at the specified address or at such
other address as such party may designate by notice:
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Employers: Thermadyne Holdings Corporation
c/o DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
and
Thermadyne Holdings Corporation
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx and Xxxxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
Employee: c/o Thermadyne Holdings Corporation
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
SECTION 13. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance for this Agreement. In
lieu of each such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
SECTION 14. Amendments. This Agreement may be amended in whole or
in part only by an instrument in writing setting forth the particulars of such
amendment and duly executed by an officer of Employers and by Employee.
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SECTION 15. Waiver. No delay or omission by any party hereto to
exercise any right or power hereunder shall impair such right or power to be
construed as a waiver thereof. A waiver by any of the parties hereto of any of
the covenants to be performed by any other party or any breach thereof shall
not be construed to be a waiver of any succeeding breach thereof or of any
other covenant herein contained. Except as otherwise expressly set forth
herein, all remedies provided for in this Agreement shall be cumulative and in
addition to and not in lieu of any other remedies available to any party at
law, in equity or otherwise.
SECTION 16. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same Agreement.
SECTION 17. Governing Law. This Agreement shall be construed and
enforced according to the laws of the State of Missouri.
SECTION 18. Payment Upon Death of Employee. In the event of the
death of Employee during the term hereof, any unpaid payments due either prior
to Employee's death or after Employee's death shall be payable as designated by
Employee in writing to Employers. In the event of the death of all such
persons so designated by Employee, either prior to the death of the Employee or
during any time when payments are due as provided herein, or in the event
Employee fails to so designate, or withdraws all such designations, said
payments thereafter shall be made to the Employee or to Employee's estate.
SECTION 19. Prior Employment Agreement. This Agreement supersedes
any and all other employment, change-in-control, severance or similar
agreements between Employee and Employers.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
EMPLOYERS:
THERMADYNE HOLDINGS CORPORATION
By /s/ XXXXX X. XXXX
-----------------------------
Title
-----------------------------
EMPLOYEE:
/s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
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