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EXHIBIT 10.32
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of May 22, 1998
(the "EFFECTIVE DATE") by and among Thermadyne Holdings Corporation, a
Delaware corporation ("HOLDINGS"), together with its subsidiaries as
herein defined (all called the "EMPLOYERS") and Xxxxxxx X. Xxxxxxx
("EMPLOYEE").
WITNESSETH:
WHEREAS, Employers desire to continue to employ Employee upon
the terms set forth herein;
WHEREAS, Employee desires to continue to be employed by
Employers and to appropriately memorialize the terms and conditions of
such employment;
WHEREAS, Holdings is entering into this Agreement by and on
behalf of itself and each trade or business in which its ownership and
the value or voting power is at least 50% (the "SUBSIDIARIES");
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 and Term. Employers hereby employ Employee
(hereinafter referred to as the "EMPLOYMENT") as Executive Vice
President, Tweco 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 the Effective Date and continue for at least three
years thereafter (unless earlier terminated as provided herein) and
(ii) renew on each anniversary of the Effective Date for a three-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 three 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 Executive Vice President, Tweco, 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 businesses of the Employers.
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The Board shall not take any action which results in a 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 $220,000 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) Bonus. During the Employment Period, Employee shall
additionally participate in an annual bonus plan providing for an
annual bonus opportunity of not less than 70% of Employee's annual
salary.
(c) 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. Without limiting the foregoing, the
employee benefit plans, programs and arrangements in which Employee
shall be entitled to participate during the Employment Period shall be
no less generous, in the aggregate, than those in which such Employee
was entitled to participate immediately prior to the consummation of
the merger between Holdings and Mercury Acquisition Corporation.
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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 substantial personal enrichment at the expense of the Employers or
(ii) demonstratively willful repeated violations of Employee's
obligations under this Agreement which are intended to result in
material injury to the Employers.
(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) receipt of notice from the Employers that the
Employment Period shall not be renewed as described in Section
1(a) above;
(ii) any failure by the Employers to comply with any
of the provisions of the Employment Agreement, other than an
isolated, insubstantial and inadvertent failure not occurring
in bad faith and which is remedied by the Employers promptly
after receipt of notice thereof given by the Employee;
(iii) any reduction in any form of compensation,
fringe benefit, deferred compensation plan or perquisite
applicable to the Employee immediately prior to the effective
time of the Employment Agreement, including any reduction in
salary or any reduction in bonus percentage to less than the
average of such bonus percentage for the two fiscal years
immediately preceding the effective time of the Employment
Agreement;
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(iv) the loss of any of the Employee's titles or
positions in effect at the effective time of the Employment
Agreement;
(v) any change in the position to which the Employee
reports or the positions that report to the Employee at the
effective time of the Employment Agreement (reporting
relationships);
(vi) the assignment to the Employee of any duties
inconsistent in any respect with the Employee's position
(including status, offices, titles and reporting
relationships), authority, duties or responsibilities as in
effect at the effective time of the Employment Agreement, or
any other action by the Employers which results in a
diminution in such position, authority, duties or
responsibilities excluding an isolated, insubstantial and
inadvertent action not taken in bad faith and which is
remedied by the Employers promptly after receipt of notice
thereof given by the Employee;
(vii) the relocation of the Employee's office
location as assigned to him by the Employers, to a location
more than 25 miles from his office location at the effective
time of the Employment Agreement;
(viii) any purported termination by the Employers of
the Employee's employment otherwise than as expressly
permitted by Section 3(b) of this Agreement; and
(ix) 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 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, 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.
For purposes of this Agreement any good faith determination of
"Constructive Termination Without Cause" made by the Employee shall be
conclusive.
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 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 bonus
received by Employee 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 the period remaining in the Employment Period
immediately prior to such termination 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(c) above and to reimbursement for expenses
incurred by Employee to own and maintain an automobile as contemplated
by Section 5 below. Such continuation of compensation, benefits and
automobile expenses shall continue for the period described above
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 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.
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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 manner whatsoever, any 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 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 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.
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SECTION 8. Agreement Not to Solicit Employees. Employee agrees
that, for a period of three (3) years following the termination of the
Employment Period, other than by Employers without Cause or as a result
of the total disability of Employee or by Employee as a constructive
termination, and only by reason of voluntary termination or termination
for Cause, 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, 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 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.
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
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
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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
Employee: c/o Thermadyne Holdings Corporation
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
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 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.
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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 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.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
EMPLOYERS:
THERMADYNE HOLDINGS CORPORATION
By /s/ XXXXX X. XXXX
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Title
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EMPLOYEE:
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
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