EMPLOYMENT AGREEMENT
Exhibit 10.20
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of 9/11/2006, by
and among Thermadyne Industries, Inc., a Delaware corporation (“Employer”) and Xxxx Xxxxx
(“Employee”).
RECITALS
A. The Parties desire Employee to be employed by Employer in the capacity of Vice
President and Global Controller; 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, Employer and Employee
do hereby covenant and agree as follows:
AGREEMENT
SECTION 1. Basic Employment Provisions.
(a) Employment. Until this Agreement is terminated by either party, as provided for herein,
Employer employs Employee (hereinafter referred to as the “Employment”) as Vice President
and Global Controller and Employee agrees to be employed by Employer in such capacity, all on the
terms and conditions set forth herein.
(b) Duties. Employee shall have those duties and responsibilities which are assigned to him
consistent with his position. The parties expressly acknowledge that the Employee shall devote all
of his business time and attention to the transaction of Employer’s businesses. Employee agrees to
perform faithfully the duties assigned to him to the best of his ability.
SECTION 2. Compensation.
(a) Salary. During this Agreement, Employer shall pay to Employee $180,000 per annum. Such
salary shall be reviewed no less frequently than annually. Such salary shall accrue and be payable
in accordance with the payroll practices of Employer 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 this Agreement, Employee shall additionally participate in an annual bonus
plan providing for an annual bonus opportunity of 60% of Employee’s annual salary, in accordance
with the terms set forth in Employer’s 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 employees of Employer. Nothing herein shall affect
Employer’s 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. Employer shall cause its parent company to grant Employee stock options
(the “Options”) to purchase up to 3,500 shares of the Common Stock of the parent company in
accordance with the terms and conditions of the parent company’s stock option plan. The exercise
price for the Options shall be equal to the closing bid price per share of the Common Stock on
September 30, 2006. The vesting and exercise of this grant shall be governed by the parent
company’s stock incentive program.
SECTION 3. Termination.
(a) Death or Disability. Employment of Employee under this Agreement shall terminate
automatically upon the death or disability (as defined in the Employer’s Long Term Disability
policy) of Employee.
(b) Cause. The Employer may terminate this Agreement at any time for Cause. “Cause” is
defined as (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; (iii) misconduct
which is injurious or presents substantial risk of injury to the Employer; (iv) habitual abuse of
alcohol, narcotics or other controlled substances by Employee; or (v) frequent or severe neglect
of duties.
(c) Without Good Reason. Employee may terminate this Agreement, at any time, without Good
Reason. Such termination shall be classified as “Voluntary”.
(d) For Good Reason. Employee may terminate this Agreement at any time for Good Reason. “For
Good Reason” is defined as (i) due to material breach of this Agreement or applicable law regarding
the employment relationship by Employer, (ii) any substantial reduction in Employee’s duties,
compensation, or benefits (not including changes in benefits generally applicable to all of
Employer’s eligible employees) without Employee’s consent. Termination by Employee for Good Reason
shall not be classified as Voluntary.
SECTION 4. Compensation Following Termination.
(a) Death. If this Agreement is terminated by reason of death or disability, no further
compensation shall be payable to Employee, Employee’s estate, heirs or beneficiaries, as
applicable, except for salary due for services performed prior to death or disability and any
awarded but unpaid bonus, and except as provided in any benefit plan that the Employee was
participating in at the date of death or disability.
(b) Termination for Cause or Voluntary Termination. If this Agreement is terminated for Cause
by Employer or Voluntarily by the Employee, then no further compensation or benefits shall be paid
to Employee after the date of termination except for salary due for services
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performed prior to termination, and except as provided in any benefit plan that the
Employee was participating in at the date of termination.
(c) Termination Without Cause or for Good Reason. If this Agreement is terminated without
Cause by Employer or for Good Reason by Employee, then Employee shall be entitled to continue to
receive from Employer his then current basic compensation hereunder, such amount to continue to be
paid in accordance with the payroll practices of Employer for a period equal to 9 months.
Additionally, Employee shall receive any salary due for services performed prior to termination
and any awarded but unpaid bonus, and any benefits as provided in any benefit plan that the
Employee was participating in at the date of termination.
(d) COBRA and ERISA. No termination shall affect Employee’s rights under COBRA, ERISA,
and similar laws.
SECTION 5. Confidential Information.
(a) Non-Disclosure. During this Agreement 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 Employer, in any manner whatsoever, any Confidential Information (as
hereinafter defined) of Employer without the prior written consent of the Employer.
(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 Employer or any subsidiary of Employer, or their respective businesses, products and
practices in which Employer or any subsidiary of Employer is or may be engaged, which information
is not generally known. 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 Employer to
the public or to persons who are not under a similar obligation of confidentiality to Employer and
who are not parties to this Agreement, (iii) obtained by Employee from a third party not under a
similar obligation of confidentiality to Employer, (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 or for the benefit of Employer. 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 Employer 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 this Agreement, Employee will surrender to
Employer all Confidential Information, including, without limitation, all lists, charts, schedules,
reports, financial statements, books and records of the Employer or any subsidiary of the Employer,
and all copies thereof, and all other property belonging to the Employer or any subsidiary of the
Employer, including, without limitation, company credit cards, cell phones, personal data
assistants or other electronic devices.
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SECTION 6. Agreement Not to Compete.
(a) Termination for Cause or Voluntarily. If this Agreement is terminated for Cause by
Employer, or Voluntarily by Employee, 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 Employer
or any subsidiary of Employer are then engaged and situated within any country in which Employer
or any subsidiary of Employer is engaged in business.
(b) Termination Without Cause or for Good Reason. If this Agreement is terminated without
Cause by Employer or For Good Reason by Employee, Employee hereby agrees that during any period
that Employee accepts payments from Employer, 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 Employer or any subsidiary of Employer is then engaged and situated within any
country in which Employer or any subsidiary of Employer is engaged in business.
SECTION 7. Agreement Not to Solicit Employees. Employee agrees that, for one year following
the termination of this Agreement, for any reason, neither he nor any affiliate shall solicit or
induce, or in any manner attempt to solicit or induce, any person employed by, or any agent of,
any Employer or any subsidiary of Employer to terminate his employment or agency, as the case may
be, with any Employer or such subsidiary.
SECTION 8. Injunctive Relief and other Remedies.
(a) Employee acknowledges and agrees that the covenants, obligations and agreements of
Employee contained in Section 5, Section 6, Section 7 and this Section
8 relate to special, unique and extraordinary matters and that a violation of any of the terms
of such covenants, obligations or agreements will cause Employer irreparable injury for which
adequate remedies are not available at law. Therefore, Employee agrees that Employer 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) In the event of Employee’s violation of the provisions of Section 5, Section
6 or Section 7, the right of Employee to receive any further payment pursuant to this
Agreement shall immediately terminate and the payments made to Employee for periods subsequent to
the termination of Employee’s employment pursuant to this Agreement shall be returned to Employer
by Employee within thirty (30) days after receipt of written notice from Employer of such
violation. The injunctive remedies and other remedies described in this Section 8 are
cumulative and in addition to any other rights and remedies Employer may have.
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SECTION 9. 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 10. 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 while being legal, valid and enforceable.
SECTION 11. 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
Employer and Employee.
SECTION 12. 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 13. 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 14. Governing Law. This Agreement shall be construed and enforced according to the
laws of the State of Missouri.
SECTION 15. Resolution of Disputes; Arbitration. Any dispute arising out of or relating to
this Agreement or Employee’s employment with Employer 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 by a single arbitrator, to be held in St. Louis, Missouri, in accordance with the
applicable 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 may be entered in any court having jurisdiction thereof. The parties
shall be responsible for their own costs and expenses, but Employer shall pay the arbitration
fees unless otherwise decided by the arbitrator.
Section 16. Written Notice. All written notices to a party shall be deemed delivered when
transmitted by hand-delivery or two days after mailing to the other at the following addresses:
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To the Employer: Attn: Chief Financial Officer (and copy to General Counsel);
Thermadyne Industries, Inc., 00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000.
To the Employee: Xxxx Xxxxx, 0000 Xxxxxxxxxxx Xxxxx Xx, Xx. Xxxxx XX 00000
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Employment Agreement as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
| EMPLOYEE: | ||||
| /s/ Xxxx Xxxxx | ||||
| Name: Xxxx Xxxxx | ||||
| EMPLOYER: | ||||
| Thermadyne Industries, Inc. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Xxxxxxxx X. Xxxxxxxx | ||||
| Title: | Vice President & General Counsel | |||
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