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EXHIBIT 10.28
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of November 1, 1996, ("the
Effective Date") by and among Thermadyne Holdings Corporation (formerly TDII
Company), a Delaware corporation ("Holdings"), together with its subsidiaries
as herein defined (all called "the Employers") and Xxxxxxx X. Xxxxxx
("Employee").
W I T N E S S E T H:
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:
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 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 Chairman of the Board, President and Chief Executive
Officer of Holdings, shall have those duties and responsibilities
which are assigned to him during the Employment Period by
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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. 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.
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 Five Hundred Thirteen Thousand Four Hundred Dollars
($513,400) 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 75% 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, stock option grants, employee stock
purchase plan grants, group life, hospitalization and other insurance
and vacations, on a basis no less favorable than as of the date of
this Agreement. Holdings undertakes to file a registration statement
with the Securities and Exchange Commission relating to the exercise
of any stock options granted to Employee and resales of Holdings
common stock acquired upon such exercise, to cause such registration
statement to be declared effective, and to maintain the effectiveness
of such registration statement throughout the duration of such stock
options.
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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) fraud or dishonesty which
results in substantial personal enrichment at the expense of the
Employers, (ii) competition with Employers or any subsidiary of
Employers, or unauthorized use of any of Employers' or any such
subsidiary's trade secrets or confidential information which results
in a significant injury to the Employers or (iii) continued gross
neglect by Employee of the duties assigned to him by the Board (if
such neglect continues for thirty (30) days after written notice from
the Board, which notice shall define the duties being neglected by
Employee).
(c) Without Cause. Any of 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 the failure of the
Employers to comply with the terms of this Agreement, or upon receipt
of notice from the Employers that the Employment Period shall not be
renewed as described in Section 1(a) above.
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.
(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 (d)
above, no further compensation or benefits shall be paid to Employee
after the date of termination, but Employee
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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.
5. Expense Reimbursement. Upon the submission of properly documented
expense account reports, Employers shall reimburse Employee for all
reasonable 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.
6. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto except that this
Agreement and all of the provisions hereof may be assigned by
Employers to any successor to all or substantially all their
respective assets (by merger or otherwise) and may otherwise be
assigned upon the prior written consent of Employee.
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.
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(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.
8. Agreement Not to Compete.
(a) Termination for Cause. In the event that the
Employee is terminated for Cause or voluntarily terminates his
Employment with Employers other than as a constructive termination,
Employee hereby agrees that for a period of one (1) year 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 Employers or any subsidiary
of Employers are then engaged and situated within any country.
Nothing contained in this Section 8(a) 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.
(b) Termination Without Cause or for Disability;
Constructive Termination. In the event that the Employment of
Employee is terminated by Employers without Cause or as a result of
the total disability of Employee or by Employee as a constructive
termination, Employee hereby agrees that during the period that
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Employee accepts payments from the Employers pursuant to Section 4(a)
or Section 4(c) above, as applicable, 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(b)
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 Section 8(b), the right of Employee to receive
any further payment pursuant to Section 4(a) or 4(c) above, as
applicable, 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. The parties
hereto hereby acknowledge and agree that the provisions of the
immediately preceding sentence shall be the sole and exclusive remedy
of the Employers in respect of any violation of this Section 8(b).
9. 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 and
that the contact with the Employee or consultant is initiated by a
third party on a "blind basis" such as through a head hunter.
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.
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.
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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
000 Xxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Employee: Xxxxxxx X. Xxxxxx
00 Xxxxxxxx Xx.
Xx. Xxxxx, Xxxxxxxx 00000
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 Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
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.
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.
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.
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17. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of Missouri.
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 to Employee's estate.
19. Prior Employment Agreement. This Agreement supersedes the employment
agreement between Employee and Employers dated October 26, 1995.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
EMPLOYERS:
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THERMADYNE HOLDINGS CORPORATION
By /s/ XXXXX X. XXXX
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Title Senior Vice President and
Chief Financial Officer
EMPLOYEE:
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/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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