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EXHIBIT 10.34
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of May 21, 2001, (the
"EFFECTIVE DATE") by and among Thermadyne Holdings Corporation, a Delaware
corporation ("HOLDINGS"), together with certain of its subsidiaries having
signed below (all called the "EMPLOYERS") and Xxxxxxx Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Employers desire to employ Employee upon the terms set forth
herein:
WHEREAS, Employee desires to be employed by Employers and to
appropriately memorialize the terms and conditions of such employment;
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. Employers hereby employ Employee (hereinafter
referred to as the "EMPLOYMENT") as Vice President Logistics,
and Employee agrees to be employed by Employers in such
capacity, all on the terms and conditions set forth herein.
(b) Duties. Employee shall be subject to the direction and
supervision of the Chief Executive Officer ("CEO"), and, as
the Vice President Logistics, shall have those duties and
responsibilities which are assigned to him by the CEO
consistent with his position. 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. During the Employment, Employers shall pay to Employee
a salary as basic compensation for the services to be rendered
by Employee hereunder. The initial amount of such salary shall
be $215,000 per annum. Such salary shall be reviewed no less
frequently than annually by the CEO and may be increased at
the discretion of the CEO. Such salary shall accrue and be
payable in accordance with the payroll practices of Employers
then in effect. All such payments
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shall be subject to deductions and withholdings authorized or
required by applicable law.
(b) Bonus. During the Employment, Employee shall additionally
participate in an annual bonus plan providing for an annual
bonus opportunity equaling 50% of Employee's annual salary.
The bonus is paid at the sole discretion of the CEO and Board
of Directors, except that for the 2001 calendar year, the
Employee's bonus will not be less than $40,000.
(c) Benefits. During the Employment, 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.
(d) Signing Bonus. Provided the Employee submits certain
documentation regarding a payment owed to the Employee by
Employee's prior employer, S&S Worldwide, and such
documentation is acceptable to the CEO, the Employers will pay
the Employee $50,000, subject to deductions and withholdings
authorized by applicable law.
SECTION 3. Termination.
(a) Death or Disability. The Employment 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. Any of the Employers acting alone, may terminate the
Employment for Cause. For the purposes of this Agreement,
"CAUSE" shall be deemed to be (i) dishonesty by the Employee
or (ii) serious or frequent neglect of Employee's obligations
or duties owed to any of the Employers.
(c) Without Cause. Any of the Employers, acting alone, may
terminate the Employment without Cause.
(d) Constructive Termination. Employee may elect to terminate his
Employment if any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the
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business and/or assets of the Employers fail to expressly
assume 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.
SECTION 4. Compensation Following Termination.
(a) Death or Disability. If the Employment is terminated pursuant
to the provisions of Section 3(a) above, this Agreement shall
terminate and no further compensation or benefits shall be
payable to Employee. However, Employee or Employee's estate,
heirs or beneficiaries may be entitled to receive benefits
pursuant to the terms of any applicable benefit plan.
(b) Termination for Cause or Voluntary Termination. If this
Employment is terminated for Cause pursuant to Section 3(b),
or voluntarily by the Employee, no further compensation or
benefits shall be paid to Employee after the date of
termination. However, Employee may be entitled to receive
benefits pursuant to the terms of any applicable benefit plan.
(c) Termination Without Cause. If the Employment is terminated
without cause pursuant to Section 3(c), then for twelve months
after the termination, Employee shall continue to receive from
the Employers his then current basic compensation hereunder
and, for twelve months after the termination, shall further be
entitled to receive the benefits to which he would otherwise
be entitled pursuant to Section 2(c) above. Such continuation
of compensation and benefits shall continue for twelve months
notwithstanding any earlier death or reemployment of Employee.
(d) Constructive Termination. If the Employment is terminated
pursuant to Section 3(d), then for twenty-four months after
the termination, Employee shall continue to receive from the
Employers his then current basic compensation hereunder and,
for twenty-four months after the termination, shall further be
entitled to receive the benefits to which he would otherwise
be entitled pursuant to Section 2(c) above. Such continuation
of compensation and benefits shall continue for twenty-four
months notwithstanding any earlier death or reemployment of
Employee.
SECTION 5. Expense Reimbursement.
Upon the submission of properly documented expense account reports,
Employers shall reimburse Employee for all reasonable business-related
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travel and expenses incurred by Employee in the course of his
Employment with Employers.
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 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 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 party not under a similar obligation of
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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 Termination of
Employment for any proper purpose as determined in the
reasonable judgement of any of the Employers.
SECTION 8. Agreement Not to Solicit Employees.
Employee agrees that, for a period of three (3) years following the
termination of Employment, 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 of Employers or any subsidiary of Employers to terminate his
employment or agency, as the case may be, with any of Employers or such
subsidiary.
SECTION 9. 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 10. 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.
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SECTION 11. 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
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Fax: 000-000-0000
and
Thermadyne Holdings Corporation
Attn: General Counsel
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Fax: 000-000-0000
SECTION 12. 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 13. 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 14. 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
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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 15. 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 16. Governing Law.
This Agreement shall be construed and enforced according to the laws of
the State of Missouri.
SECTION 17. 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 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 18. Prior Employment Agreement.
This Agreement supersedes any and all other employment,
change-in-control, severance or similar agreements between Employee and
Employers.
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SECTION 19. Jointly and Severally Liable.
Each of the Employers that have signed below is a party to this
Agreement and is jointly and severally liable for the obligations of
Employers set forth in this Agreement.
EMPLOYEE:
/s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
EMPLOYERS:
THERMADYNE HOLDINGS CORPORATION
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE MFG. LLC
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE INDUSTRIES, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
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THERMADYNE CAPITAL CORP.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE INTERNATIONAL CORP.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
XXXXXX GAS SYSTEMS, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
TWECO PRODUCTS, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
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THERMAL DYNAMICS CORP.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
STOODY COMPANY
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMAL ARC, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
C&G SYSTEMS HOLDING, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
C&G SYSTEMS, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
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THERMADYNE ITALIA, SRL.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE AUSTRALIA PTY LTD.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
Forms 5155/kb
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