EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.35
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of July
14, 2009 by and among Thermadyne Holdings Corporation, a Delaware corporation
(“Holdings”), and Xxxx Xxxxxx (“Employee”).
RECITALS
A. The Parties desire Employee to be employed by Holdings in the capacity of Vice President,
General Counsel
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, Holdings and Employee
do hereby covenant and agree as follows:
SECTION 1. Basic Employment Provisions
(a) Employment. Holdings hereby employs Employee (hereinafter referred to as the
“Employment”) as Vice President, General Counsel of Holdings and of Holdings’
subsidiaries (hereinafter collectively and individually referred to as “Employers”) 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 a mutually agreed date, no later than July 14,
2009 (the “Effective Date”) and continue for at least one year thereafter (unless
earlier terminated as provided herein) and (ii) renew on the first anniversary of the
Effective Date and each anniversary of the Effective Date 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 non-renewal 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 90 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 ten months from the expiration of the Employment Period.
(b) Duties. Employee shall be subject to the direction and supervision of the CEO and,
as the Vice President, General Counsel 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 substantially all of his
business time and attention to the transaction of Employers’
businesses as is necessary to discharge his supervisory management responsibilities
hereunder. The foregoing will not preclude reasonable participation in civic and community
organizations and participation as a member of the board of directors of at least one company will
be permitted. 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 $200,000 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 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
Holdings’ annual bonus plan providing for an annual bonus opportunity of 30% of Employee’s annual
salary, or a targeted 2009 bonus opportunity of $60,000, for each calendar year, in accordance with
Holdings’ then current Annual Incentive Plan provisions. Annual bonuses are prorated based upon
employment date. Bonuses are contingent upon company bonus funding provisions as described in the
2009 Scorecard Review Workbook.
(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,
employee stock purchase plans, and any other retirement plans, 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 him 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.
(d) Stock Options. Holdings shall grant Employee restricted stock and/or stock options to
purchase shares the common stock of Holdings in accordance with the terms and conditions of
Thermadyne Holdings Corporation 2004 Stock Incentive Plan, as amended.
SECTION 3. Termination.
(a) Death or Disability. Employment of Employee under this Agreement shall
terminate automatically upon the death or total disability of Employee.
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(b) Cause. The CEO, subject to the prior 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) an act of willful misconduct, fraud, embezzlement,
theft, or any other act constituting a felony, involving moral turpitude or causing material harm,
financial or otherwise, to the Employers; (ii) an intentional act or failure to act, which is
committed by the Employee and which causes or can be expected to imminently cause material injury
to any of the Employers; (iii) a material breach of this Agreement that is not cured by the
Employee within 15 days after written notice from the CEO specifying the breach and requesting a
cure; or (vi) habitual abuse of alcohol, narcotics or other controlled substances which impairs
Employee’s ability to perform Employee’s duties 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 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) 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) any reduction in salary, bonus percentage or material reduction in duties;
(iii) any purported 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. Employers
agree to provide copy of this agreement to any such successor prior to the succession.
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(v) any relocation of Employee to a location which is in excess of 45 miles
of the current location of the principal executive offices of Employers.
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, if any,
pursuant to Section 2(c).
(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
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, and (iii) Employers
shall pay any un-reimbursed expenses pursuant to Section 5 below. 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 pursuant to Section 3(b) 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 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
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hereunder, such amount to continue to be paid in accordance with the payroll practices of
Employers for a period equal to ten months, and (ii) to receive any eligible bonus set forth
in Section 2(b) that has been earned but not paid for the year preceding the year in which
termination occurs in accordance with the Employer’s Annual Incentive Plan, and (iii) during
such ten month period, to continue to receive the 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
benefit coverage as Employee was making on the date of termination, with such adjustments to
contributions as are made generally for all Employers’ employees. In the event Employee
obtains employment elsewhere during such ten month period, such compensation and benefits
shall continue for the period described above notwithstanding such reemployment of Employee.
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 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 such claims in
form and substance mutually satisfactory to Employers and Employee.
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. 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
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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 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. In the event that Employee is terminated for Cause pursuant
to Section 3(b) above or voluntarily terminates his Employment with Employers other than as a
Constructive Termination pursuant to Section 3(d) above, 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.
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(b) Termination Without Cause or for Disability; Constructive Termination. In the
event that the Employment of Employee is terminated by Employers without Cause pursuant to
Section 3(c) above, or as a result of the total disability of Employee or by Employee as a
Constructive Termination pursuant to Section 3(a) and 3(d) above, respectively, Employee
hereby agrees that during the period that Employee accepts payments from the Employers
pursuant to a disability plan sponsored by Employers pursuant to Section 2(c) and 4(b)
above or payments pursuant to 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 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 twelve
months following the termination for any reason, 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 or her employment or
agency, as the case may be, with any Employers or such subsidiary.
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 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 the provisions of Section 8, or 9 after
the Employment of Employee is terminated for any reason, and fails to cease or cure such
violation within thirty (30) days after the receipt by Employee of written notice of
violation from Holdings, 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.
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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 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, (i) one day after deposit
with a nationally recognized overnight express courier service with receipt of deposit confirmed,
or (ii) 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 | ||||
| and | ||||
| Thermadyne Holdings Corporation | ||||
| Attn: Executive Vice President/CAO | ||||
| 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 | ||||
| And | ||||
| Xxxx X. Xxxxxx | ||||
| 000 Xxxxxx Xxxxx Xxxxx | ||||
| 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
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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. 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 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 Commercial Arbitration
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. Both parties hereby voluntarily waive any
right to trial by jury. 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, although the arbitrator shall have the right and
jurisdiction to award costs and attorneys’ fees to the prevailing (in the opinion of the
arbitrator) party. Nothing in this Section 19 shall limit the Employers’ right to obtain an
injunction, restraining order or other equitable relief pursuant to Section 10.
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, or, in the
absence of such designation, as designated in the depositive investments or beneficiary
designation of Employee duly executed by Employee according to law. In the event of the death of
all such persons so designated by Employee, either prior to the death of the
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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 prior
employment, change-in-control, severance or similar agreements between Employee and Employers.
SECTION 22. Withholding Taxes. All payments under this Agreement shall be net of appropriate
withholding taxes
SECTION 23. Indemnification. Holdings will indemnify Employee to the fullest extent that
would be permitted by law (including a payment of expenses in advance of final disposition of a
proceeding) as in effect at the time of the subject act or omission, or by the charter or by-laws
of Holdings as in effect in effect at such time, or by the terms of any indemnification agreement
between Holdings and the Employee, whichever affords greatest protection to Employee, and the
Employee shall be entitled to the protection of any insurance policies Holdings may elect to
maintain generally for the benefit of its officers and/or, during the Employee’s service in such
capacity (if applicable), directors, (and to the extent Holdings maintains such an insurance
policy or policies, in accordance with its or their terms to the maximum extent of the coverage
available for any Holdings officer or director); against all costs, charges, and expenses
whatsoever incurred or sustained by Employee (including but not limited to any judgment entered by
a court of law) at the time such costs, charges, and expenses are incurred or sustained, in
connection with any action, suit or proceeding to which Employee may be made a party by reason of
his being or having been an officer or employee of Holdings, or serving as a director, officer or
employee of an affiliate of Holdings, at the request of Holdings, other than any action, suit or
proceeding brought against Employee by or on account of his breach of the provisions of an
employment agreement with a third party that has not been disclosed by Employee to Holdings. The
provisions of this Section 23 shall survive any termination of this Agreement.
SECTION 24. Section 409A Matters.
(a) Notwithstanding any term or condition in the Agreement to the contrary, if the Employee is
a “specified employee” (within the meaning of Section 409A(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-1(a)(9)(iii)(A)(1) 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
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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.
(b) 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.
(c) To the extent that (i) the Agreement affords Employee the right to elect the timing for
distribution of payments for termination of employment described herein and (ii) 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Executive Employment
Agreement as of the date first above written.
| EMPLOYEE: | ||||||
| /s/ Xxxx X. Xxxxxx | ||||||
| Name: | Xxxx X. Xxxxxx | |||||
| Dated: | 7/14/09 | |||||
| EMPLOYERS: | ||||||
| Thermadyne Holdings Corporation | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx | ||||||
| Title: | Executive Vice President, CAO and CFO | |||||
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