EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.18
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of April 1,
2005 by and among Thermadyne Holdings Corporation, a Delaware corporation (“Holdings”), the
subsidiaries of Holdings (together with Holdings, the “Employers”), and Xxxxxx Xxxxx
(“Employee”).
RECITALS
A. The Parties desire Employee to be employed by Employers in the capacity of Executive Vice
President — Global Sales; and
B. The Parties desire to set forth the terms and conditions of such employment to which each
Party will be bound;
NOW THEREFORE, for and in consideration of the foregoing recitals, and in consideration of the
mutual covenants, agreements, understandings, undertakings, representations, warranties and
promises hereinafter set forth, and intending to be legally bound thereby, Employers and Employee
do hereby covenant and agree as follows:
SECTION 1. Basic Employment Provisions
(a) Employment and Term. Employers hereby employ Employee (hereinafter referred to as the
“Employment”) as Executive Vice President — Global Sales 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
April 1, 2005 (the “Effective Date”) and continue for at least two years thereafter
(unless earlier terminated as provided herein) and (ii) renew on the second anniversary of the
Effective date and each anniversary of the thereafter for a one-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 one year 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. If
Employers elect not to renew the Employment Period in accordance with this Section 1(a),
Employee shall be entitled to continue to receive from Employers his then current basic
compensation hereunder, such amount to continue to be paid in accordance with the payroll
practices of Employers for a period equal to six (6) months from the expiration of the Employment
Period. Employee shall have the option to receive the present value of the amount (at a 12%
discount) described in the immediately preceding sentence in a lump sum payment, with such option
to be exercised by Employee in writing within ten (10) days of termination and Employer shall
make such lump sum payment within thirty (30) days of receiving the written notice from Employee.
(b) Duties. Employee shall be subject to the direction and supervision of the CEO or the
CEO’s delegate (the “CEO”) and, as the Executive Vice President — Global Sales shall
have those duties and responsibilities which are assigned to him during the Employment Period by
the CEO consistent with his position. The parties expressly acknowledge that the Employee shall
devote all of his business time and attention to the transaction of Employers’ 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 $270,000 per annum. Such salary shall be reviewed no less frequently than
annually by the CEO and may be increased upon the approval of the CEO, subject to the approval of
the Board of Directors of Holdings. 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 for the calendar years thereafter, in accordance with the terms set forth in
Employers’ then current Management Incentive Plan.
(c) Benefits. During the Employment Period, Employee shall be entitled to participate in
such employee benefit plans, programs and arrangements made available to, and on the same terms
as, other similarly situated executives of Employers, including, without limitation, 401(k)
plans, excess savings plans, tax qualified profit sharing plans and any other retirement plans
(including the Superannuation fund of Cigweld Pty Ltd., hereinafter called the SAF), health,
group life (with optional additional coverage), short term disability, long term disability (not
to exceed 60% of Employee’s annual salary otherwise payable to Employee for the applicable
period), hospitalization and such other benefit programs as may be approved from time to time by
Employers for their executives. Employee shall be entitled to four weeks paid vacation per year.
Nothing herein shall affect Employers’ right to amend, modify or terminate any retirement or
other benefit plan at any time on a company-wide basis for similarly situated executives.
Notwithstanding the foregoing, the Employee shall not be entitled to a Company match under the
401(k) plan if Employer contributes to the SAF. Furthermore, to the extent Employee pays tax in
the US on Employee’s SAF contribution, the Employer shall neutralize this effect by grossing up
the base pay of Employee by an amount equal to the negative tax effect. Employer will pay for
Employee’s tax preparation during his U.S. employment with Employer.
(d) Stock Options. Holdings shall grant Employee stock options (the “Options”) to purchase
up to 50,000 shares the Common Stock of Holdings in accordance with the terms and conditions of
Holdings’ stock option plan. The exercise price for the Options shall be equal to the closing bid
price per share of the Common Stock on the over-the-counter market
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as of the close of business immediately preceding the date of Employee’s execution of this
Agreement. Subject in each case to Employee’s continued Employment until the applicable vesting
date, one-half of the Options will become vested and, subject to compliance with applicable
securities laws, exercisable in three equal annual installments on each of the next three
anniversaries of the Effective date, and the remaining one-half of the Option (the “Performance
Options”) will become vested, and subject to compliance with applicable securities laws,
exercisable in three equal annual installments on each of the first three anniversaries of the
date of grant (each an “Installment Date”) if Holdings achieves its Return on Invested Capital
Targets in accordance with its annual budget for the immediately preceding fiscal year. If any
Performance Options do not vest in any year due to the failure to meet the Return on Invested
Capital Targets for such year, such Options shall vest on any subsequent Installment Date if
Holdings has cumulatively achieved on such date the Return on Invested Capital Targets for the
current year, plus the Return on Invested Capital Targets for the prior years for which such
Targets were not achieved (after taking into account any portion of such Targets achieved in such
prior years); provided, however, that if the Performance Options do not vest by the final
Installment Date, then such Options shall vest on the seventh anniversary of the grant, provided
Employee is still employed with the Employers on such date. In addition to grant listed above,
Employee will be eligible for future grants on the same basis as similarly situated Employees of
the Employers.
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
consecutive months.
(b) Cause. The CEO, subject to approval from the Board of Directors, may terminate the
Employment of Employee under this Agreement for Cause. For the purposes of this Agreement,
“Cause” shall be deemed to be (i) the conviction of a crime by Employee constituting a
felony or other crime involving moral turpitude, (ii) an act of dishonesty or disloyalty by
Employee that resulted in or was intended to result in harm to any of the Employers; (iii) the
willful engaging by Employee in misconduct which is injurious to any of the Employers; (iv)
Employee’s failure to comply with the material terms of this Agreement; (v) failure by Employee
to comply fully with any lawful directives of the Board or Employers; (vi) misappropriation by
Employee of Employers’ funds; (vii) habitual abuse of alcohol, narcotics or other controlled
substances by Employee; or (viii) gross negligence in the performance of Employee’s duties and
responsibilities hereunder.
(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 the Employment under this
Agreement, effective immediately, upon a Constructive Termination Without Cause, as defined
below, by provided Employer written notice within thirty days of Employee becoming aware of such
Constructive Termination Without Cause. Failure to provide notice
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within thirty days shall constitute a waiver of Employee’s rights under this Section. 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) any failure by the Employers 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 Employers within 30 days after receipt of written
notice thereof given by the Employee;
(ii) without the Employee’s consent, any reduction in salary, bonus percentage, or
material reduction in duties;
(iii) any purported “for cause” termination by the Employers of the Employee’s
employment otherwise than as expressly permitted by Section 3(b) of this Agreement;
(iv) 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 this 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.
SECTION 4. Compensation Following Termination.
(a) Death. If the Employment Period is terminated pursuant to the provisions of Section
3(a) above due to the death of Employee, this Agreement shall terminate, and no further
compensation shall be payable to Employee’s estate, heirs or beneficiaries, as applicable, except
that Employee’s estate, heirs or beneficiaries, as applicable, shall be entitled to receive (i)
Employee’s then current basic compensation through the end of the month in which Employee’s death
occurred, (ii) a pro rata portion (based on a fraction the numerator of which is the number of
days Employee worked in the year of Employee’s death and the denominator of which is 365) of the
bonus as set forth in Section 2(b) which Employee would have been entitled to receive for
the year in which termination occurs if the performance objectives established in Employers’
Management Incentive Plan are achieved, and (iii) any un-reimbursed expenses pursuant to
Section 5 below, and, thereafter, Employers shall have no further obligations or
liabilities hereunder to Employee’s estate or legal representative or otherwise, other than the
payment of benefits or amounts, if any, pursuant to Section 2(c) and 4(e).
(b) Disability. If the Employment Period is terminated pursuant to the provisions of
Section 3(a) above due to Employee’s total disability as determined thereunder, this
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Agreement shall terminate, and (i) Employers will continue the payment of Employee’s basic
compensation at the then current rate until the earlier of (A) the benefits under any long-term
disability insurance provided by Employers commences or (B) 180 days from the date of such total
disability, (ii) Employers shall pay a pro rata portion (based on a fraction the numerator of
which is the number of days Employee worked in the year Employee became totally disabled and the
denominator of which is 365) of the bonus as set forth in Section 2(b) which Employee
would have been entitled to receive for the year in which termination occurs if the performance
objectives established in Employers’ Management Incentive Plan are achieved, (iii) Employers
shall pay any un-reimbursed expenses pursuant to Section 5 below, and (iv) Employers
shall pay any amount due under Section 4(e). Thereafter, Employers shall have no
obligation for basic compensation or other compensation payments to Employee during the
continuance of such total disability.
(c) 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, except as provided in Section 4(e). Employee shall be entitled to
receive benefits to which he is or may become entitled pursuant to any benefit plan which by its
terms survive termination.
(d) Termination Without Cause; Constructive Termination. If the Employment Period is
terminated pursuant to Section 3(c) or 3(d) above, Employee shall be entitled (i) to
continue to receive from Employers his then current basic compensation hereunder, such amount to
continue to be paid in accordance with the payroll practices of Employers for a period equal to
12 months, (ii) to receive his bonus pursuant to Section 2(b) for the year in which
Employee is terminated, (iii) during such 12-month period, to continue to receive the medical and
dental benefits to which he would otherwise be entitled during the Employment Period pursuant to
Section 2(c) above; provided that Employee shall continue to make the same
contributions toward such coverage as Employee was making on the date of termination, with such
adjustments to contributions as are made generally for all Employers’ employees, (iv) to any
amounts that might become due under Section 4(e), and (v) during such 12-month period, to
a monthly automobile allowance as contemplated by Section 5 below; provided,
however, that Employee shall no longer be entitled to participate in any of Employers’
401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement
plans. Employee shall have the option to receive the present value of the benefits (at a 12%
discount) described in the immediately preceding sentence in a lump sum payment, with such option
to be exercised by Employee in writing within ten (10) days of termination and Employer shall
make such lump sum payment within thirty (30) days of receiving the written notice from Employee.
In the event of Employee’s death during such 12-month period, such continuation of compensation,
benefits and monthly automobile allowance shall cease upon Employee’s death. In the event
Employee obtains employment elsewhere during such 12-month period such compensation, benefits and
monthly automobile allowance shall continue for the period described above notwithstanding such
reemployment of Employee; provided, however, that Employers’ obligations for
compensation, benefits and monthly automobile allowance shall be reduced by the amount Employee
receives from his new employer for compensation, benefits and automobile allowance. The sums
received by Employee under this Section 4(d) shall be considered liquidated damages in
respect of claims based on any provisions of this
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Agreement or Employee’s employment with Employers and the commencement of the payment of
such sums by Employers shall not begin until Employee executes and delivers a general release of
all claims in form and substance satisfactory to Employers.
(e) Termination For Any Reason. In addition to any other compensation provided in this
section, upon termination of the Employment Period for any reason, Employers shall pay the actual
and reasonable costs to transport Employee, his immediate family, and their possessions from St.
Louis to Australia (provided Employee and Employee’s family return to Australia within six months
of the termination). In addition, Employers shall be obligated to pay the actual and reasonable
cost incurred from selling of one residential home if Employee has purchased a home in St. Louis
for his residence (provided Employee sells said residential home within one year of termination).
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.
Employers shall provide Employee with a gross monthly car allowance of $500. Unless otherwise
expressly provided in this Agreement, Employers’ obligations under this Section 5 shall terminate
upon the termination of the Employment Period, except for any expenses eligible for reimbursement
hereunder that are incurred prior to such termination.
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 CEO.
(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
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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) directly 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 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. In the event Employee believes that he is free to disclose or utilize Confidential
Information under Section 7(b), he shall give written notice of the same to Employers at
least 30 days prior to the release or use of such Confidential Information and shall specify the
claimed exemption and the circumstances giving rise thereto.
(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, including, without limitation, company credit cards, cell phones,
personal data assistants or other electronic devices, 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. If Employee’s employment 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 12 months 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. If Employee’s
employment is terminated without Cause or the non-renewal of the Employment Period by Employers
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 1(a), Section 4(b), Section 4(c) or Section
4(d) 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
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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 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.
SECTION 9. Agreement Not to Solicit Employees. Employee agrees that, for a period of two
(2) years following the termination by reason of voluntary termination by Employee 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, any Employers or any
subsidiary of Employers to terminate his employment or agency, as the case may be, with any
Employers or such subsidiary; provided that such limitations shall not apply if the contact with
the employee, agent or consultant is initiated by a third party, not engaged or hired by Employee
or any affiliate of Employee, on a “blind basis” such as through a head hunter.
SECTION 10. Injunctive Relief and other
Remedies.
(a) Employee acknowledges and agrees that the covenants, obligations and agreements of
Employee contained in Section 7, Section 8, Section 9 and this
Section 10 relate to special, unique and extraordinary matters and that a violation of
any of the terms of such covenants, obligations or agreements will cause Employers irreparable
injury for which adequate remedies are not available at law. Therefore, Employee agrees that
Employers shall be entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction may deem necessary or
appropriate to restrain Employee from committing any violation of such covenants, obligations or
agreements.
(b) If Employee violates Section 7, Section 8, or Section 9 after
Employee’s employment is terminated for any reason, the right of Employee to receive any further
payment pursuant to this Agreement shall immediately terminate and the payments made to Employee
subsequent to the termination of Employee’s Employment pursuant to this Agreement shall be
returned to Employers by Employee within thirty (30) days after receipt of written notice from
Employers of such violation. The injunctive remedies and other remedies described in this
Section 10 are cumulative and in addition to any other rights and remedies Employers may
have.
SECTION 11. 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
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by which Employee, or to the best knowledge of Employee, Employee’s affiliates may be bound or
affected.
SECTION 12. 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 13. 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:
Employers: Thermadyne Holdings Corporation
Attn: Chief Executive Officer
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Fax: 000.000.0000
Attn: Chief Executive Officer
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Fax: 000.000.0000
and
Thermadyne Holdings Corporation
Attn: General Counsel
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Fax: 000.000.0000
Attn: General Counsel
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Fax: 000.000.0000
Employee: c/o Thermadyne Holdings Corporation
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
SECTION 14. 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 15. 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.
SECTION 16. Waiver. Except as otherwise provided herein, delay or omission by any either
party to exercise any right or power hereunder shall not 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
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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 17. 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 18. Governing Law. This Agreement shall be construed and enforced according to the
laws of the State of Missouri.
SECTION 19. Resolution of Disputes; Arbitration. Any dispute arising out of or relating to
this Agreement or Employee’s employment with Employers or the termination thereof shall be resolved
first by negotiation between the parties. If such negotiations leave the matter unresolved after
60 days, then such dispute or claim shall be resolved by binding confidential arbitration, to be
held in St. Louis, Missouri, in accordance with the rules of the American Arbitration Association.
The arbitrator in any arbitration provided for herein will be mutually selected by the parties or
in the event the parties cannot mutually agree, then appointed by the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. The parties shall be responsible for their own costs and expenses
under this Section 19.
SECTION 20. 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 prior to his death 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 prior to his death, or withdraws all such designations, said payments
thereafter shall be made to Employee’s estate.
SECTION 21. Prior Employment Agreements. This Agreement supersedes any and all other
employment, change-in-control, severance or similar agreements between Employee and Employers.
SECTION 22. Jointly and Severally Liable. Each of the Employers is jointly and severally
liable for the obligations of Employers set forth in this Agreement.
SECTION 23. Relocation. Employee will relocate to St. Louis, Missouri within three months of
the Effective Date. Employers will pay Employee’s living expenses in St. Louis, Missouri,
including rent of a furnished apartment, telephone, gas, water, sewer, and electric for six months
after Employee’s relocation. Employer will pay for all customary expenses to relocate Employee and
Employee’s family to St. Louis (for purposes of this clause, “customary” refers to practices and
policies of the Employer as they have been applied to Employees in similar Executive positions).
In addition, Employer shall pay one return trip to / from Australia for Employee and each of
Employee’s immediate family members once per year. Employer will
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also pay Employee an amount equal to the customary expenses to relocate Employee’s possessions
to St. Louis, Missouri. Employer will pay the customary legal expenses and fees associated with
immigration of Employee, his wife and son. Employer will also pay to Employee an amount equal to
3% of the appraised value of the Employee’s home in Australia. The Parties will mutually agree on
an appraiser.
SECTION 24. Signing Bonus. Holdings shall pay Employee a one time lump sum of A$79,818.33 as
a signing bonus and in cancellation of any long term leave bank Employee has accumulated prior to
the Effective Date.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Employment Agreement
as of the date first above written.
| EMPLOYEE: | ||||||
| Name: Xxxxxx Xxxxx | ||||||
| Dated: | ||||||
| EMPLOYERS: | ||||||
| Thermadyne Holdings Corporation | ||||||
| By: | ||||||
| Xxxx X. Xxxxxx | ||||||
| Title: | Chairman and Chief Executive Officer | |||||
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