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EXHIBIT 10.25
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Award Agreement
under the
Thermadyne Holdings Corporation
Management Incentive Plan
Date of Grant: May 22, 1998
Name of Optionee: Xxxxxx X. Xxxxx
Number of Shares
Time Vesting: 5,302
Cliff Vesting: 5,301
Exercise Price: $34.50/share
Expiration Date: May 22, 2008
Thermadyne Holdings Corporation, a Delaware corporation (the
"COMPANY"), hereby grants to the above-named optionee (the "OPTIONEE") a time
vesting option (the "TIME VESTING OPTION") and a cliff vesting option (the
"CLIFF VESTING OPTION" and, together with the Time Vesting Option, the
"OPTIONS") to purchase from the Company, for the price per share set forth
above, the number of shares of Common Stock, $0.01 par value (the "SHARES"), of
the Company set forth above pursuant to the Thermadyne Holdings Corporation
Management Incentive Plan (the "PLAN"). The Options are not intended to be
treated as incentive stock options under the Code.
Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan. The terms and conditions of the Option granted
hereby, to the extent not controlled by the terms and conditions contained in
the Plan, are as follows:
1. Exercise Price. The price at which each Share subject to
this Option may be purchased shall be the price set forth above.
2. Number of Shares; Exercise. The number of Shares for which
the Time Vesting Option and the Cliff Vesting Option may be exercised are set
forth above. To the extent this Option has become vested in accordance with
Sections 3 and 4 below, the Option may be exercised at any time until the
Expiration Date, subject to the terms of the Plan and of Section 8 below.
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3. Vesting: Time Vesting Option. As of the Date of Grant, the
Time Vesting Option shall become vested and exercisable with respect to 20% of
the Shares subject thereto. On each of the first five anniversaries of the
Date of Grant, provided the Optionee is then in the employ of the Company or a
Subsidiary, the Time Vesting Option shall become vested and exercisable with
respect to an additional 16% of the Shares subject thereto.
4. Vesting: Cliff Vesting Option.
(a) To the extent not previously vested in accordance with
paragraph (b) or (c) below, the Cliff Vesting Option shall become fully vested
and exercisable on the eighth anniversary of the Date of Grant, provided the
Optionee is then in the employ of the Company or a Subsidiary.
(b) The Cliff Vesting Option shall become vested and exercisable
with respect to 20% of the Shares subject thereto on the thirtieth day
following the availability of audited financial statements for each of the five
fiscal years of the Company commencing with the fiscal year ending December 31,
1998 (each such day a "CLIFF VESTING DATE"), provided the implied common equity
value of the Company as of the end of such fiscal year, calculated in
accordance with Exhibit A hereto, is at least equal to the target value for
such fiscal year set forth in such Exhibit A, and provided further that the
Optionee is in the employ of the Company or a Subsidiary on such Cliff Vesting
Date. If the target set forth in Exhibit A for any of the first four fiscal
years referred to above is not attained, the portion of the Cliff Vesting
Option that would otherwise have vested for such fiscal year shall be treated
as vested and exercisable as of the Cliff Vesting Date for any subsequent
fiscal year ending on or before December 31, 2002 for which the target for such
subsequent year is attained, provided the Optionee is in the employ of the
Company or a Subsidiary on such Cliff Vesting Date.
(c) Upon the occurrence of a Liquidation Event, provided the DLJ
Entities' realized annual investment rate of return as calculated in accordance
with Exhibit B ("DLJ IRR") is at least 20%, and provided the Optionee is in the
employ of the Company or a Subsidiary as of such Liquidation Event, the Cliff
Vesting Option shall become vested and exercisable with respect to a portion of
the Shares subject thereto as to which the Option has not yet vested in
accordance with paragraph (b) above ("UNVESTED CLIFF VESTING SHARES"). In such
case, the Cliff Vesting Option will become vested and exercisable with respect
to the applicable percentage of the Unvested Cliff Vesting Shares set forth in
Exhibit B hereto, based on the DLJ IRR.
5. Manner of Exercise. The Optionee (or his representative,
devisee or heir, as applicable) may exercise any portion of this Option which
has become exercisable in accordance with the terms hereof as to all or any of
the Shares then available for purchase by delivering to the Company written
notice specifying:
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(i) the number of whole Shares to be purchased together
with payment in full of the aggregate Exercise Price of such shares;
(ii) the address to which dividends, notices, reports,
etc. are to be sent; and
(iii) the Optionee's social security number.
Payment shall be in cash, by certified or bank cashier's check payable to the
order of the Company, free from all collection charges, or in unencumbered
Shares (provided such shares shall have been held by the Optionee for at least
six months unless the Committee determines in its sole discretion that such
six-month holding period is not necessary to comply with any accounting, legal
or regulatory requirement) having a Fair Market Value equal to the full amount
of the Exercise Price therefor, or such other form as may be permitted by the
Committee. Only one stock certificate will be issued unless the Optionee
otherwise requests in writing. Shares purchased upon exercise of the Option
will be issued in the name of the Optionee or the Optionee's Permitted
Transferee. The Optionee shall not be entitled to any rights as a stockholder
of the Company in respect of any Shares covered by this Option until such
Shares shall have been paid for in full and issued to the Optionee.
6. Certificates. Certificates issued in respect of Shares
acquired upon exercise of the Option shall, unless the Committee otherwise
determines, be registered in the name of the Optionee or its Permitted
Transferee. When the Optionee ceases to be bound by the provisions of the
Investors' Agreement, the Company shall deliver such certificates to the
Optionee or its Permitted Transferee upon request. Such stock certificate
shall carry such appropriate legends, and such written instructions shall be
given to the Company's transfer agent, as may be deemed necessary or advisable
by counsel to the Company in order to comply with the requirements of the
Securities Act of 1933, any state securities laws or any other applicable laws
or the Investors' Agreement.
7. Nontransferability. This Option is personal to the Optionee
and may be exercised only by the Optionee or his or her representative in the
event of the Optionee's Disability or death. This Option shall not be
transferable other than by will or the laws of descent and distribution.
Notwithstanding the foregoing, this Option may be transferred to a trust solely
for the benefit of the Optionee or the Optionee's immediate family (which shall
be deemed to include the Optionee's spouse, parents, siblings, children,
stepchildren and grandchildren).
8. Forfeiture of Option; Right of Repurchase.
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(a) If the Optionee's employment with the Company and its
Subsidiaries shall terminate for any reason other than by the Company or its
Subsidiary for Cause, then (i) to the extent not yet vested as of the date of
termination of employment, the Option shall immediately be forfeited; and (ii)
to the extent vested as of the date of termination of employment, the Option
may be retained and exercised, in accordance with the terms of the Plan and
this Award Agreement, until the Expiration Date.
(b) If the Optionee's employment with the Company and its
Subsidiaries shall be terminated by the Company or its Subsidiary for Cause,
then the entire Option shall immediately be forfeited, and all Shares
previously acquired upon exercise of the Option shall be subject to a right of
repurchase by the Company from the Participant or his or her Permitted
Transferee at a price equal to the Exercise Price.
9. Change of Control. Upon a Change of Control, the Time
Vesting Option shall vest in its entirety and become immediately exercisable
and, if the Change of Control constitutes a Liquidation Event, the Cliff
Vesting Option shall vest in accordance with Section 4(c) hereof.
10. Sale of Underlying Shares. The Optionee's right to sell any
Shares acquired upon exercise of the Option (in the case of Optionees who are
party thereto) shall be subject to the terms of the Investors' Agreement.
11. Employment Rights. This Option does not confer on the
Optionee any right to continue in the employ of the Company or any Subsidiary
or interfere in any way with the right of the Company or any Subsidiary to
determine the terms of the Optionee's employment.
12. Terms of Plan; Interpretations. This Option and the terms and
conditions herein set forth are subject in all respects to the terms and
conditions of the Plan, which shall be controlling. All interpretations or
determinations of the Committee and/or the Board shall be binding and
conclusive upon the Optionee and his legal representatives on any question
arising hereunder. The Optionee acknowledges that he has received and reviewed
a copy of the Plan.
13. Delegation. Optionee acknowledges that any powers, rights or
responsibilities of the Board and/or the Committee set forth herein may be
delegated to and exercised by any subcommittee thereof as permitted under the
Plan.
14. Notices. All notices hereunder to the party shall be
delivered or mailed to the following addresses:
If to the Company:
Thermadyne Holdings Corporation
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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
If to the Optionee:
To the person and at the address specified on the signature
page.
Such addresses for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the other party.
15. Entire Agreement. This Agreement, together with the Plan and
(in the case of Optionees who are party thereto) the Investors Agreement,
contains the entire understanding of the parties hereto in respect of the
subject matter contained herein. This Agreement, the Plan and (in the case of
Optionees who are party thereto) the Investors' Agreement supersede all prior
agreements and understandings between the parties hereto with respect to the
subject matter hereof.
16. Governing Law. This Award Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
application of the conflict of laws principles thereof.
17. Counterparts. This Award Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Award Agreement
to be duly executed as of the date first above written.
THERMADYNE HOLDINGS CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXXX
-----------------------------------
Name:
Title:
OPTIONEE:
/s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Address: c/o Thermadyne Holdings Corp.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
