EXHIBIT 10.34
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this
"Agreement") is made and entered into as of June 13, 2002 by and among
Thermadyne Holdings Corporation, a Delaware corporation ("Holdings"), the
subsidiaries of Holdings signatory hereto (together with Holdings, the
"Employers"), and Xxxx X. Xxxx ("Employee").
RECITALS
A. Employers commenced voluntary cases under chapter 11 of title 11 of
the United States Code (the "Bankruptcy Code") on November 19, 0000 (xxx
"Xxxxxxxx Xxxx") xx xxx Xxxxxx Xxxxxx Bankruptcy Court for the Eastern Division
of the Eastern District of Missouri (the "Bankruptcy Court").
B. On March 13, 2002, Employers filed with the Bankruptcy Court a
Motion Pursuant to Sections 105(a), 363(b)(1), and 365 of the Bankruptcy Code
for an Order Approving the Adoption of a Key Employee Retention Program and the
Assumption of Employment Agreements (the "Motion"). On May 13, 2002, Employers
filed with the Bankruptcy Court a Supplemental Motion for Order Approving the
Adoption of Modified Key Employee Retention Program (the "Supplemental Motion").
On May 28, 2002, Employers filed with the Bankruptcy Court a Joint Stipulation
by and between Employers and the Official Creditors' Committee Approving
Employers Supplemental Motion for Order Approving Adoption of Modified Key
Employee Retention Program, as Amended, was filed (the "Joint Stipulation").
C. On May 28, 2002, the Bankruptcy Court entered an Order (the "Order")
approving the Joint Stipulation.
D. Certain of Employers and Employee are parties to (i) the Executive
Employment Agreement dated January 13, 2001, (ii) the Amendment to Executive
Employment Agreement dated May 3, 2001, (iii) the Supplement to Executive
Employment Agreement dated August 16, 2001, and (iv) the Second Amendment to
Executive Employment Agreement dated November 9, 2001 (collectively, the "Prior
Employment Agreements").
E. Pursuant to Section 365 of the Bankruptcy Code and the Joint
Stipulation, Employers desire to assume the Prior Employment Agreements subject
to the amendments thereto that were approved by the Bankruptcy Court pursuant to
the Order and that are set forth in this Agreement.
F. This Agreement amends, restates and supercedes the Prior Employment
Agreements in their entirety.
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 Chairman of the Board, President and Chief
Executive Officer of Holdings and Employee agrees to be employed by Employers in
such capacities, all on the terms and conditions set forth herein. The
Employment shall be for a period (the "Employment Period") that will (i)
commence on January 13, 2001 (the "Effective Date") and continue for at least
two years thereafter (unless earlier terminated as provided herein) and (ii)
renew on each anniversary of the Effective Date for a two-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
two years 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.
(b) Duties. Employee shall be subject to the direction and supervision
of the Board of Directors of Holdings (the "Board") and, as the Chief Executive
Officer, shall have those duties and responsibilities which are assigned to him
during the Employment Period by the Board consistent with his positions,
provided that the Board shall not assign any greater duties or responsibilities
to the Employee than are necessary to the Employee's faithful and adequate
supervision of the overall management and business of the Employers. The Board
shall not take any action which results in a material diminution of Employee's
position, authority, duties or responsibilities as of the date hereof. The
parties expressly acknowledge that the 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. 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 $700,000 per
annum. Such salary shall be reviewed no less frequently than annually by the
Board and may be increased upon the approval of the Board in its sole
discretion. 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) Annual Bonus. While Employee remains actively employed by the
Employers, Employee shall additionally participate in an annual bonus plan
providing for an annual bonus opportunity of not less than 100% of Employee's
annual salary in accordance with the terms set forth in Employers' Management
Incentive Plan.
(c) Special Bonus. Provided Employee remains actively employed by the
Employers, Employee shall be entitled to a one-time special bonus based on
appreciation in the equity value
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of Holdings, conditional upon achievement of the target set forth in Appendix A
hereto, and payable in accordance with the terms of such Appendix A.
(d) Sale Bonus. Provided Employee remains actively employed by the
Employers and in the event of the occurrence of certain transactions involving
Holdings as described in Appendix B hereto, Employee shall be entitled to a
one-time sale payable upon the terms set forth in such Appendix B.
(e) Enterprise Value Bonus. Provided Employee remains actively employed
by the Employers and in the event of the occurrence of certain transactions
involving Holdings as described in Appendix C hereto, Employee shall be entitled
to a one-time enterprise value bonus payable upon the terms set forth in such
Appendix C.
(f) Benefits. During the Employment Period, 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.
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 (6)
consecutive months.
(b) Cause. The Board may terminate the Employment of Employee under
this Agreement for Cause. For the purposes of this Agreement, "Cause" shall be
deemed to be (i) dishonesty by Employee that results in personal enrichment at
the expense of the Employers or (ii) demonstratively willful repeated violations
of Employee's obligations under this Agreement, (iii) commission of an act or
acts constituting a felony involving moral turpitude, or (iv) willful
insubordination or disregard of any material directive of the Board.
(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, if such event has not been
cured by the Employers following reasonable notice by Employee of the occurrence
thereof:
(i) receipt of notice from the Employers that the Employment
Period shall not be renewed as described in Section 1 (a) above;
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(ii) 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;
(iii) any material reduction in any form of compensation,
fringe benefit, deferred compensation plan or perquisite applicable to
the Employee immediately prior to the date hereof;
(iv) a material adverse change in the Employee's titles or
positions from those in effect as of the date hereof;
(v) any material adverse change in the position to which the
Employee reports or the positions that report to the Employee as of the
date hereof (reporting relationships);
(vi) the assignment to the Employee of any duties materially
inconsistent with, and inferior to, the Employee's position (including
status, offices, titles and reporting relationships), authority, duties
or responsibilities as in effect as of the date hereof, or any other
action by the Employers which results in a material diminution in such
position, authority, duties or responsibilities excluding an isolated,
insubstantial and inadvertent action;
(vii) any purported termination by the Employers of the
Employee's employment otherwise than as expressly permitted by Section
3(b) of this Agreement; and
(viii) 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 or Disability. If the Employment Period is terminated
pursuant to the provisions of Section 3(a) above, this Agreement shall
terminate, and no further compensation shall be payable to Employee except that
Employee or Employee's estate, heirs or beneficiaries, as applicable, shall be
entitled, in addition to any other benefits to which Employee is or may become
entitled under any benefit plan, to receive Employee's then current basic
compensation, plus an amount in lieu of bonus, which amount shall be determined
as the average bonus received by Employee under Section 2(b) hereof for the
appropriate period (prorated for partial portions thereof) for the previous 24
months hereunder and all other benefits to which Employee would otherwise be
entitled hereunder during the Employment Period for a period of 24 months from
the date the Employment Period terminates.
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(b) 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, but Employee
shall be entitled to receive benefits to which he is or may become entitled
pursuant to any benefit plan.
(c) Termination Without Cause; Constructive Termination. If the
Employment Period is terminated pursuant to Section 3(c) or 3(d) above, Employee
shall be entitled to continue to receive from Employers his then current basic
compensation hereunder, plus an amount in lieu of bonus, which amount shall be
determined as the average annual bonus received by Employee under Section 2(b)
hereof for the appropriate period (prorated for partial portions thereof) for
the previous 24 months, such amount to continue to be paid in accordance with
the payroll practices of Employers for a period equal to 24 months (the "Payment
Period") and Employee shall further be entitled during such period both to
continue to receive the benefits to which he would otherwise be entitled during
the Employment Period pursuant to Section 2(f) above and to reimbursement for
expenses incurred by Employee to own and maintain an automobile as contemplated
by Section 5 below. In the event Employee becomes re-employed during the Payment
Period (whether as employee or independent contractor), the amounts payable
under this Section 4(c) will continue and will not be offset or reduced by the
amount of compensation received by Employee from his new employer for services
performed during the Payment Period, and Employee shall continue to be entitled
to receive benefits described in Section 2(f) even if such benefits are
available from his new employer during the Payment Period.
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 and for expenses
incurred by Employee to own and maintain an automobile.
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
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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, and Confidential Information (as
hereinafter defined) of Employers or any subsidiary of Employers without the
prior written consent of the Board.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or though 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 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 Employment Period for any proper
purpose as determined in the reasonable judgment of any of the Employers.
SECTION 8. Agreement Not to Compete. While Employee is actively
employed by the Employers and for period of one year thereafter, irrespective of
the time, manner or cause of the termination of employment, Employee hereby
agrees that 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 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. In the event of Employee's
violation of the provisions of this Section 8, the right, if any, of Employee to
receive any further payment pursuant to Section 4 above shall immediately
terminate and the Employers shall be entitled to secure reimbursement from
Employee for all payments made to Employee subsequent to the date of any such
violation.
SECTION 9. Agreement Not to Solicit Employees. Employee agrees that,
while Employee is actively employed by the Employers and for a period of two (2)
years thereafter, irrespective of the time, manner or cause of 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
6
person employed by, or any agent of, either of Employers or any subsidiary of
Employers to terminate his employment or agency, as the case may be, with either
of Employers or such subsidiary, provided that such limitations shall not apply
if the contact with the Employee or consultant is initiated by a third party on
a "blind basis" such as through a head hunter.
SECTION 10. 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 11. 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 12. 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
Employee: c/o Thermadyne Holdings Corporation
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
SECTION 13. 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
7
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 14. 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 15. 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 16. 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 17. Governing Law. This Agreement shall be construed and
enforced according to the laws of the State of Missouri.
SECTION 18. 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 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 the Employee's estate.
SECTION 19. Prior Employment Agreements. This Agreement supersedes any
and all other employment, change-in-control, severance or similar agreements
between Employee and Employers.
SECTION 20. Withholding. All amounts payable under this Agreement shall
be subject to all applicable tax or other withholding requirements.
SECTION 21. 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.
SECTION 22. Acknowledgement. As a condition to Employers' assumption of
the Prior Agreements and execution of this Agreement, Employee hereby
acknowledges and agrees as follows:
(a) Assumption of the Prior Agreements and execution of this Agreement
shall in no manner be deemed to be a commitment by Employers to continue the
Employment of Employee
8
on or after the effective date of any chapter 11 plan of reorganization of any
Employer, subject to the Employee's right to compensation following termination
set forth in Section 4; and
(b) Employee irrevocably waives all rights, if any, to claim that
Employee's employment under the Prior Employment Agreements was terminated,
constructively or otherwise, prior to the date hereof; and
(c) Employee agrees that all claims, if any, against the Employers
which arose prior to the Petition Date are hereby deemed to be satisfied and
Employee irrevocably waives all rights, if any, to such claims; provided,
however, this Section 22(c) shall not apply to claims for unpaid amounts of
incidental benefits such as reimbursement for out-of-pocket expenses for travel
and entertainment, or for health or dental benefits, vacation pay, automobile
expenses and the like.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amended and Restated Executive Employment Agreement as of the date first above
written.
EMPLOYEE:
------------------------------------------
Xxxx X. Xxxx
EMPLOYERS:
THERMADYNE HOLDINGS CORPORATION
By: /s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE MFG. LLC
By: /s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE INDUSTRIES, INC.
By: /s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE CAPITAL CORP.
By: /s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
XXXXXX EQUIPMENT COMPANY
By: /s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
THERMADYNE INTERNATIONAL CORP.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
XXXXXX GAS SYSTEMS, INC.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
TWECO PRODUCTS, INC.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMAL DYNAMICS CORP.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
STOODY COMPANY
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMAL ARC, INC.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
C&G SYSTEMS HOLDING, INC.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
C&G SYSTEMS, INC.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE ITALIA, SRL.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE AUSTRALIA PTY LTD.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE ASIA/PACIFIC PTE LTD.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE JAPAN, LTD.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
THERMADYNE SOUTH AMERICA HOLDINGS, LTD.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE SOUTH AFRICA (PTY) LTD.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
MAXWELD & BRAZE (PTY) LTD.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
GENSET S.P.A.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
TECMO SRL
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
OCIM SRL
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
DUXTECH PTY. LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
COMWELD GROUP PTY. LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE BRAZIL HOLDINGS, LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE XXXXXX LTDA.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE CHILE HOLDINGS, LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SOLTEC SA
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
THERMADYNE DO BRASIL LTDA.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE INDUSTRIES LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE CYLINDER CO.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
MECO HOLDING COMPANY
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
MODERN ENGINEERING COMPANY, INC.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE WELDING PRODUCTS CANADA, LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
THERMADYNE DE MEXICO S.A. DE C.V.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
TWECO DE MEXICO S.A. DE C.V.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
ARCAIR STOODY EUROPE S.A.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
XXXXXX EQUIPMENT DE MEXICO S.A. DE C.V.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
COMWELD GROUP PTY. LTD.
By: /s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
Title: Senior Vice President & CFO
PHILIPPINE WELDING EQUIPMENT, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
COMWELD PHILIPPINES, INC.
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
THERMADYNE ASIA SDN BHD
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
PT COMWELD INDONESIA
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
COMWELD MALAYSIA SDN
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Title: Senior Vice President & CFO
SIGNATURE PAGE TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
APPENDIX A
SPECIAL BONUS
1. If, while Employee remains actively employed by the Employers, the
value of the DLJMB Ownership Interest, as defined below, equals or exceeds $165
million, Employee shall be entitled to a special cash bonus equal to $7,425,000.
2. For purposes of calculating the special bonus under this Appendix A,
the following terms shall have the meaning set forth below:
(a) "DLJMB Entities" shall mean DLJ Merchant Banking Partners
II, L.P., DLJ Offshore Partners II, X.X., XXX Xxxxxxxx Xxxxxxx Xxxxxxxx
XX-X, X.X., XXX Diversified Partners, L.P., DLJ Diversified Partners-A,
L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A, L.P.,
DLJMB Funding II, Inc., UK Investment Plan 1997 Partners, DLJ EAB
Partners, DLJ First ESC, L.P. and DLJ ESC II, L.P.
(b) "Holdings Enterprise Value" as of any date means seven
multiplied by the Holdings EBITDA for the most recently completed
twelve-month period. To the extent the EBITDA valuation multiple
implicit in the market price of the stock of comparable publicly traded
companies varies from seven, the Board shall have the discretion to
adjust the multiple set forth in the preceding sentence to the average
implicit EBITDA valuation multiple for such comparable publicly traded
companies.
(c) "DLJMB Ownership Interest" shall mean the product of (i)
the aggregate percentage economic equity ownership of Holdings held by
the BLJMB Entities (fully diluted to take into account any unexercised
options or warrants), multiplied by (ii) the Holdings Enterprise Value
less all long- and short-term debt of Holdings and its consolidated
subsidiaries.
3. The value of the DLJMB Ownership Interest shall be determined from
time to time by the Board in its absolute discretion. For this purpose, the
Board may, prior to payment of any bonus, require review by Holdings' auditors
of any unaudited determinations of Holdings EBITDA, in order to ensure that no
material audit adjustment is likely to affect the final calculation of Holdings
EBITDA taken into account for purposes of calculating bonus payments under this
Agreement.
4. In the event that the DLJMB Entities dispose of all or part of their
investment in Holdings in exchange for an amount that is less than $165 million,
the Board shall have the discretion, but not the obligation, to pay Employee a
partial special bonus to reflect the recovery by the DLJMB Entities of a portion
of their original investment cost in Holdings. Any such payment shall be applied
against and offset any payment that Holdings may subsequently become obligated
to pay under Paragraph 1 of this Appendix A.
APPENDIX A TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
APPENDIX B
SALE BONUS
1. If, while Employee remains actively employed by the Employers, the
DLJMB Entities, as defined in Appendix A, fully dispose of their entire
investment in Holdings (including common and preferred equity, as well as any
debt) (a "DLJMB Exit"), Employee shall be entitled to a sale bonus in the amount
set forth below.
2. The sale bonus shall be equal to 1% of the amount if any, by which
the Holdings Enterprise Value, as defined in Appendix A, exceeds $808.1 million
as of the date of the DLJMB Exit.
APPENDIX B TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
APPENDIX C
SALE BONUS
1. IF, WHILE EMPLOYEE REMAINS ACTIVELY EMPLOYED BY THE EMPLOYERS AND UPON EITHER
THE OCCURRENCE OF (a) THE EFFECTIVE DATE OF ANY PLAN OF REORGANIZATION CONFIRMED
BY THE BANKRUPTCY COURT UNDER THE EMPLOYERS' VOLUNTARY CASES UNDER CHAPTER 11 OF
THE BANKRUPTCY CODE FILED ON NOVEMBER 19, 2001 ("PLAN OF REORGANIZATION") OR (b)
THE CLOSING DATE OF THE CONSUMMATION OF A SALE OR OTHER DISPOSITION BY THE
EMPLOYERS OF ALL OR SUBSTANTIALLY ALL OF THE EMPLOYERS' ASSETS OR BUSINESSES AS
GOING CONCERNS ("DISPOSITION"), EMPLOYEE SHALL BE ENTITLED TO A SPECIAL CASH
BONUS BASED UPON THE ENTERPRISE VALUE OF HOLDINGS AS SET FORTH BELOW:
Enterprise Value Cash Bonus Amount
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Less than $450,000,000 None
$450,000,000 to $474,999,999 $250,000 plus 1% of the Enterprise
Value in excess of $450,000,000
$475,000,000 to $499,999,999 $500,000 plus 2% of the Enterprise
Value in excess of $475,000,000
$500,000,000 to $524,999,999 $1,000,000 plus 2% of the Enterprise
Value in excess of $500,000,000
$525,000,000 or more $1,500,000 plus 3% of the Enterprise
Value in excess of $525,000,000
2. FOR PURPOSES OF THIS APPENDIX C ONLY, THE "ENTERPRISE VALUE" OF HOLDINGS
SHALL MEAN: (a) THE ENTERPRISE VALUE SET FORTH IN THE PLAN OF REORGANIZATION,
PROVIDED, HOWEVER, IF NO SUCH VALUE IS SET FORTH IN THE PLAN OF REORGANIZATION
THEN SUCH VALUE SHALL BE THE ENTERPRISE VALUE AS DETERMINED IN GOOD FAITH BY THE
BOARD OF DIRECTORS OF HOLDINGS; OR (b) THE CASH CONSIDERATION PLUS THE FAIR
MARKET VALUE, AS DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS OF HOLDINGS,
OF THE NON-CASH CONSIDERATION RECEIVED IN THE DISPOSITION.
APPENDIX C TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (X. XXXX)
