Contract
Exhibit 10.8
2010 CASH AWARD AGREEMENT
THERMADYNE HOLDINGS CORPORATION
THERMADYNE HOLDINGS CORPORATION
THIS CASH AWARD AGREEMENT (this “Agreement”) dated March 9, 2010, between Thermadyne Holdings
Corporation (the “Company”), a Delaware corporation, and
(the “Grantee”), an officer or
key employee of the Company or one of its subsidiary corporations (“Subsidiary Corporation”) within
the meaning of Section 424(f) of the Internal Revenue Code (“the Code”).
RECITALS:
WHEREAS, pursuant to Section 2(c) of the Amended and Restated Executive Employment Agreement
between Grantee and Company dated , the Company has agreed to grant to Grantee a certain
award of cash subject to vesting upon the achievement of performance-based criteria established by
the Compensation Committee of the Board of Directors and on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual undertakings set forth in
this Agreement, the Company and the Grantee agree as follows:
Section 1. Terms of Plan to Control
This Agreement is subject to all the terms and conditions of the Company’s Amended and
Restated 2004 Stock Incentive Plan (the “Plan”), as such terms and conditions may be applied
without regard to the nature of the award granted. A copy of the Plan is available upon request.
Capitalized terms used in this Agreement and not otherwise defined in the Agreement are defined in
the Plan. In the event of a conflict between the Plan and this Agreement, the terms of the Plan
shall control.
Section 2. Grant of Cash Award
Subject to the restrictions and risk of forfeiture set forth in this Agreement, including
without limitation the performance-based vesting provisions set forth in Section 3.1, and subject
to adjustment in the amount of the award contemplated hereunder, the Company hereby grants to the
Grantee a Cash Award in the amount of dollars ($_________), which shall be subject to
the withholding/deductions from compensation in accordance with the Company’s normal payroll
practices.
Section 3. Restrictions
3.1 The portion of the Cash Award awarded to Grantee hereunder will become vested (and thereby
no longer subject to forfeiture hereunder) and will be delivered to Grantee, based on the Company’s
ROIOC (as defined herein) performance in calendar year 2012. The ROIOC for 2012 will be calculated
and certified in early 2013, with vesting (if any) to occur upon the Company’s official
announcement of financial results for the fiscal year ending December 31,
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2012. One hundred percent of the Original Grant will vest if the Company achieves 39.4% ROIOC in
2012. Fifty percent of the Original Grant will vest if the Company achieves 31.5% ROIOC in 2012.
If the Company fails to achieve 31.5% ROIOC in 2012, the entire Cash Award granted hereunder shall
be forfeited. If the Company achieves 47.3% ROIOC in 2012, Grantee shall be entitled to receive,
and the Company shall issue and deliver to Grantee along with the fully vested portion of the
Original Grant, an additional cash payment in the amount of dollars ($_________). No
incremental adjustments to awards will be made for average ROIOC levels between the goals stated
herein. Vesting at the above levels of ROIOC is not cumulative, i.e., vesting at a higher level
ROIOC is in lieu of (and not in addition to) achievement of the lower level.
3.2 The following terms shall have the following meaning when used herein:
| a. | “ROIOC” for a fiscal year of the Company means Adjusted Operating EBITDA for such year divided by Invested Operating Capital for such year. | ||
| b. | “Invested Operating Capital” for a fiscal year of the Company is the sum of the following items from the consolidated year end balance sheet as shown on the Company’s audited financial statement for such year: |
Accounts receivables, less allowances for doubtful accounts
Inventories
Net property, plant and equipment
Patents and trademarks included in intangibles
Other assets
Long term receivables
Less accounts payable
Inventories
Net property, plant and equipment
Patents and trademarks included in intangibles
Other assets
Long term receivables
Less accounts payable
| c. | “Adjusted Operating EBITDA” for a fiscal year of the Company is the sum of the following items from the consolidated year end statements of operations as shown on the Company’s audited financial statement for such year: |
Net income (loss) from continuing operations
Interest expense
Net periodic postretirement benefits in excess of cash payments
Restructuring costs
LIFO
Minority interest
Severance accrual
Stock compensation expense
Provision for income tax
Interest expense
Net periodic postretirement benefits in excess of cash payments
Restructuring costs
LIFO
Minority interest
Severance accrual
Stock compensation expense
Provision for income tax
3.3 The award percentages are based on projections as to the continued operation of the
Company and its Subsidiary Corporations in their current ordinary course of business. The parties
agree and acknowledge that Invested Operating Capital and Adjusted Operating EBITDA
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may be recast by the Company to adjust for any unforeseen extraordinary circumstances that may
occur, including, but not limited to, a change in accounting methods, the discontinued operations
of a Subsidiary Corporation or a division, or the sale or acquisition of a business or brand.
3.4 Notwithstanding anything in this Agreement to the contrary, all restrictions under this
Section 3 on the Cash Award granted under this Agreement shall lapse upon the consummation of a
Change in Control and payment of the full amount of the Cash Award shall be delivered to the
Grantee or, in the event of his or her death, to his or her Designated Beneficiary or Beneficiaries
as soon as practicable.
3.5 The Grantee may designate a beneficiary or beneficiaries (“Designated Beneficiary or
Beneficiaries”) on the Designated Beneficiary form attached to this Agreement to receive any vested
portion of the Cash Award not previously paid under this Agreement upon the Grantee’s death. If
the Grantee does not complete the Beneficiary Designation form, or the Designated Beneficiary or
Beneficiaries has or have predeceased the Grantee or cannot be located, the vested portion of the
Cash Award not previously paid shall be transferred in accordance with the Grantee’s will or, if
the Grantee has no will, in accordance with the applicable state laws or descent and distribution.
Section 4. Termination of Employment
4.1 All rights to the Cash Award, to the extent not previously forfeited or vested, shall be
forfeited on the Grantee’s termination of employment with the Company or a Subsidiary Corporation.
4.2 With respect to any portion of the Cash Award that has vested but has not been transferred
to Grantee as of the last day of Grantee’s employment, the payment of any such vested portion shall
be delivered to the Grantee as soon as practicable.
4.3 If the Grantee dies while in the employ of the Company or a Subsidiary Corporation, or
dies after his or her employment terminates but prior to the time any vested portion of the Cash
Award is actually paid to him or her under Section 4.2, such unpaid portion of the Cash Award shall
be transferred to his or her testamentary transferee at the time and in the manner described in
Section 3.5.
4.4 References herein to an individual’s employment shall include any and all periods during
which such individual is considered an employee of the Company or a Subsidiary Corporation. The
Grantee shall be deemed to have terminated employment when the Grantee completely ceases to be
employed (within the meaning of the preceding sentence) by the Company and all of its Subsidiary
Corporations. The Committee may in its discretion determine (a) whether any leave of absence
constitutes a termination of employment within the meaning of this Agreement, and (b) the impact,
if any, of any such leave of absence on the Cash Award granted under this Agreement.
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Section 5. Non-Assignability
No right granted to the Grantee under the Plan or this Agreement, except as otherwise provided
in this Agreement, shall be assignable or transferable (whether by operation of law or otherwise
and whether voluntarily or involuntarily), other than by will or by the laws of descent and
distribution. During the life of the Grantee, all rights granted to the Grantee under the Plan or
under this Agreement shall inure only by the Grantee.
Section 6. Withholding Taxes
Whenever under the Plan and this Agreement any portion of a Cash Award is to be delivered, the
Company shall be have the right to withhold an amount sufficient to satisfy all federal, state and
other governmental withholding tax requirements related thereto.
Section 7. Right of Discharge Reserved
Nothing in the Plan or in this Agreement shall confer upon the Grantee the right to continue
in the employment, or service of the Company or any of its Subsidiary Corporations, or affect any
right which the Company or any of its Subsidiary Corporations may have to terminate the employment
or service of the Grantee. The parties agree and acknowledge that the Grantee is an at-will
employee of the Company or Subsidiary Corporation. The Company and the Grantee retain the right to
terminate such employment relationship at any time.
Section 8. Nature of Payments
8.1 Any Cash Award delivered hereunder shall be in consideration of services performed by the
Grantee for the Company or for its Subsidiary Corporations.
8.2 Any Cash Award delivered hereunder shall constitute a special incentive payment to the
Grantee. Such Cash Award shall not be taken into account in computing the amount of salary or
compensation of the Grantee for the purposes of determining any pension, retirement, death or other
benefits under (a) any 401(k), pension, retirement, profit-sharing, bonus, life insurance,
disability or other benefit plan of the Company or any Subsidiary Corporation or (b) any agreement
between the Company or any Subsidiary Corporation, on the one hand, and the Grantee, on the other
hand, except as such plan or agreement shall otherwise expressly provide.
Section 9. Committee Determinations
The Committee’s determinations under the Plan and this Agreement need not be uniform and may
be made by it selectively among persons who receive, or are eligible to receive, awards under the
Plan (whether or not such persons are similarly situated). All decisions, interpretations and
determinations by the Committee with regard to any question or matter arising hereunder or under
the Plan shall be conclusive and binding upon the Company and the Grantee and his or her
transferees.
Section 10. Section Headings
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The Section headings contained herein are for the purpose of convenience only and are not
intended to define or limit the contents of said sections.
Section 11. Notices
Any notice to be given to the Company or the Committee hereunder shall be in writing and shall
be addressed to the Secretary of the Company at Thermadyne Holdings Corporation, 00000 Xxxxxxxx
Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000, or at such other address as the Company may
hereafter designate to the Grantee by notice as provided herein. Any notice to be given to the
Grantee hereunder shall be addressed to the Grantee at the address set forth beneath his signature
hereto, or at such other address as the Grantee may hereafter designate to the Company by notice as
provided herein. Notices hereunder shall be deemed to have been duly given when personally
delivered or mailed by registered or certified mail to the party entitled to receive the same.
Section 12. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the parties hereto and the
successors and assigns of the Company and, as contemplated in Section 4.3, the heirs and personal
representatives of the Grantee.
Section 13. Other Payments or Awards
Nothing contained in this Agreement shall be deemed in any way to limit or restrict the
Company or any Subsidiary Corporations from making any award or payment to the Grantee under any
other plan, arrangement or understanding, whether now existing or hereafter in effect.
Section 14. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the state of
Missouri despite any laws of that state that would apply the laws of a different state. In the
event of litigation arising in connection with this Agreement and/or the Plan, the parties hereto
agree to submit to the jurisdiction of state and Federal courts located in the state of Missouri.
Section 15. Severability
If any term or provision of this Agreement, or the application of this Agreement to any person
or circumstances, shall at any time or to any extent be invalid, illegal or unenforceable in any
respect as written, both parties intend for any court construing this Agreement to modify or limit
that provision so as to render it valid and enforceable to the fullest extent allowed by law. Any
provision that is not susceptible of reformation shall be ignored so as to not affect any other
term or provision of this Agreement, and the remainder of this Agreement, or the application of
that term or provision to persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable, shall not be affected thereby and each term and provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
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Section 16. Entire Agreement; Modification
The Plan and this Agreement contain the entire agreement between the parties with respect to
the subject matter contained in this Agreement and may not be modified, except as provided in the
Plan, as it may be amended from time to time in the manner provided in the Plan, or in this
Agreement, as it may be amended from time to time by a written document signed by each of the
parties to this Agreement. Any oral or written agreements, representations, warranties, written
inducements or other communications with respect to the subject matter contained in this Agreement
made before the signing of this Agreement shall be void and ineffective for all purposes.
Section 17. Authority to Receive Payments
Any amount payable to or for the benefit of a minor, an incompetent person or other person
incapable of receipting therefore shall be deemed paid when paid to the conservator of such
person’s estate or to the party providing or reasonably appearing to provide for the care of such
person, and such payment shall fully discharge the Company, members of the Committee and the Board
with respect thereto.
Section 18. Counterparts
This Agreement may be executed simultaneously in two or more counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first above written.
| THERMADYNE HOLDINGS CORPORATION | GRANTEE | |||||
By: |
||||||
| General Counsel & Secretary | Date of Signature: | |||||
| Grantee’s Address: | ||||||
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To the Secretary of Thermadyne Holdings Corporation (“Company”)
I hereby designate the following person, persons or entity as primary and secondary Designated
Beneficiaries of rights that may be transferred under the Thermadyne Long Term Incentive Award
program, the Thermadyne Holdings Corporation 2004 Stock Incentive Plan (the “Plan”) and the 2010
Cash Award Agreement (“Agreement”) between the Company and me dated March 9, 2010, upon my death:
Primary Beneficiary [include address and relationship]:
Secondary Beneficiary [include address and relationship]:
I RESERVE THE RIGHT TO REVOKE OR CHANGE ANY BENEFICIARY DESIGNATION. I HEREBY REVOKE ALL PRIOR
DESIGNATIONS (IF ANY) OF BENEFICIARIES AND SECONDARY BENEFICIARIES.
The Company shall cause any vested portion of the Grant Award not previously paid to be transferred
by reason of my death pursuant to the Agreement to the Primary Beneficiary, if he, she or it
survives me, and if no Primary Designated Beneficiary shall survive me, then to my secondary
Designated Beneficiary. If no named Designated Beneficiary survives me, then all such amount shall
be transferred in accordance with the terms of the Agreement.
NOTE: Unless provided otherwise in this Beneficiary Designation, the Company shall transfer any
vested portion of the Grant Award not previously paid to be transferred to more than one Designated
Beneficiary equally to the living Designated Beneficiaries.
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