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EXECUTIVE EMPLOYMENT AGREEMENT

Employee Retention Agreement

EXECUTIVE EMPLOYMENT AGREEMENT | Document Parties: Thermadyne Holdings Corporation You are currently viewing:
This Employee Retention Agreement involves

Thermadyne Holdings Corporation

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Title: EXECUTIVE EMPLOYMENT AGREEMENT
Governing Law: Missouri     Date: 3/11/2009
Industry: Constr. and Agric. Machinery     Sector: Capital Goods

EXECUTIVE EMPLOYMENT AGREEMENT, Parties: thermadyne holdings corporation
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Exhibit 10.23

EXECUTIVE EMPLOYMENT AGREEMENT

     THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of August 7, 2006 by and among Thermadyne Holdings Corporation, a Delaware corporation (“ Holdings ”), and Steven A. Schumm (“ Employee ”).

RECITALS

     A. The Parties desire Employee to be employed by Holdings in the capacity of Executive Vice President — Chief Financial Officer and Chief Administrative Officer; and

 

 B.

 

The Parties desire to set forth the terms and conditions of such employment to which each Party will be bound;

     NOW THEREFORE, for and in consideration of the foregoing recitals, and in consideration of the mutual covenants, agreements, understandings, undertakings, representations, warranties and promises hereinafter set forth, and intending to be legally bound thereby, Holdings and Employee do hereby covenant and agree as follows:

          SECTION 1. Basic Employment Provisions

     (a) Employment and Term. Holdings hereby employs Employee (hereinafter referred to as the “ Employment ”) as Executive Vice President — Chief Financial Officer and Chief Administrative Officer of Holdings and of Holdings’ subsidiaries (hereinafter collectively and individually referred to as “Employers”) 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 a mutually agreed date, no later than August 7, 2006 (the “ Effective Date ” and continue for at least two years thereafter (unless earlier terminated as provided herein) and (ii) renew on the second anniversary of the Effective Date and each anniversary of the Effective Date thereafter for a one-year period, on the same terms and conditions contained herein (unless earlier terminated as provided herein or Employee is timely provided a notice of non-renewal as provided herein), such that the Employment Period shall extend for a period of one year from the date of each such extension. The Employers must provide Employee with written notice not less than 90 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. If Employers elect not to renew the Employment Period in accordance with this Section 1(a) , Employee shall be entitled to continue to receive from Employers his then current basic compensation hereunder, such amount to continue to be paid in accordance with the payroll practices of Employers for a period equal to twelve months from the expiration of the Employment Period. If, however, the Employment Period is not renewed, the Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (“Code”), and payments under this Section 1(a) are not a separation pay arrangement within the meaning of Prop. Treasury Reg. 1.409A-1(a)(9) or any successor Treasury Regulations, the payment of Employee’s current basic compensation

 


 

shall be paid for a period of twelve consecutive months commencing with the seventh consecutive month immediately following the month in which the Employment Period ends.

     (b) Duties. Employee shall be subject to the direction and supervision of the CEO and, as the Executive Vice President — Chief Financial Officer and Chief Administrative Officer shall have those duties and responsibilities which are assigned to him during the Employment Period by the CEO consistent with his position. The parties expressly acknowledge that the Employee shall devote substantially all of his business time and attention to the transaction of Employers’ businesses as is necessary to discharge his supervisory management responsibilities hereunder. The foregoing will not preclude reasonable participation in civic and community organizations and participation as a member of the board of directors of at least one company will be permitted. 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 $325,000 per annum. Such salary shall be reviewed no less frequently than annually by the CEO and may be increased upon the approval of the CEO, subject to the approval of the Board of Directors of Holdings. 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 for each calendar year, in accordance with the terms set forth in Employers’ then current Management Incentive Plan.

     (c) Benefits. During the Employment Period, Employee shall be entitled to participate in such employee benefit plans, programs and arrangements made available to, and on the same terms as, other similarly situated executives of Employers, including, without limitation, 401(k) plans, employee stock purchase plans, and any other retirement plans, health, group life (with optional additional coverage), short term disability, long term disability (not to exceed 60% of Employee’s annual salary otherwise payable to him for the applicable period), hospitalization and such other benefit programs as may be approved from time to time by Employers for their executives. Employee shall be entitled to four weeks paid vacation per year. Nothing herein shall affect Employers’ right to amend, modify or terminate any retirement or other benefit plan at any time on a company-wide basis for similarly situated executives.

     (d) Stock Options. Holdings shall grant Employee stock options (the “Options”) to purchase up to 120,000 shares the common stock of Holdings in accordance with the terms and conditions of Thermadyne Holdings Corporation 2004 Stock Incentive Plan. The exercise price for the Options shall be equal to the closing bid

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price per share of the common stock on the over-the-counter market as of the close of business immediately preceding the date of Employee’s execution of this Agreement. Subject in each case to Employee’s continued Employment until the applicable vesting date, one-half of the Options will become vested and, subject to compliance with applicable securities laws, exercisable in three equal annual installments on each of the next three anniversaries of the Effective date, and the remaining one-half of the Option (the “Performance Options”) will become vested, and subject to compliance with applicable securities laws, exercisable in three equal annual installments on each of the first three anniversaries of the date of grant (each an “Installment Date”) if Holdings achieves its Return on Invested Capital Targets in accordance with its annual budget for the immediately preceding fiscal year. If any Performance Options do not vest in any year due to the failure to meet the Return on Invested Capital Targets for such year, such Options shall vest on any subsequent Installment Date if Holdings has cumulatively achieved on such date the Return on Invested Capital Targets for the current year, plus the Return on Invested Capital Targets for the prior years for which such Targets were not achieved (after taking into account any portion of such Targets achieved in such prior years); Provided, however , that if the Performance Options do not vest by the final Installment Date, then such Options shall vest on the seventh anniversary of the grant, provided Employee is still employed with the Employers on such date. In addition to the grant listed above, Employee will be eligible for future grants on the same basis as similarly situated employees of the Employers.

          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, Employee shall be totally disabled if he is disabled within the meaning of Code Section 409A(a)(2)(C).

     (b) Cause. The CEO, subject to the prior approval from the Board of Directors, may terminate the Employment of Employee under this Agreement for Cause. For the purposes of this Agreement, “ Cause ” shall be deemed to be (i) an act of willful misconduct, fraud, embezzlement, theft, or any other act constituting a felony, involving moral turpitude or causing material harm, financial or otherwise, to the Employers; (ii) an intentional act or failure to act, which is committed by the Employee and which causes or can be expected to imminently cause material injury to any of the Employers; (iii) a material breach of this Agreement that is not cured by the Employee within 15 days after written notice from the CEO specifying the breach and requesting a cure; or (vi) habitual abuse of alcohol, narcotics or other controlled substances which impairs Employee’s ability to perform Employee’s duties hereunder.

     (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

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      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) 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 and which is remedied by the Employers within 30 days after receipt of written notice thereof given by the Employee;

     (ii) any reduction in salary, bonus percentage or material reduction in duties;

     (iii) any purported termination by the Employers of the Employee’s employment otherwise than as expressly permitted by Section 3(b) of this Agreement;

     (iv) 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. Employers agree to provide copy of this agreement to any such successor prior to the succession.

     (v) The Employers shall relocate its principal executive offices or require the Employee to have his principal location of work changed, in either case, to any location which is in excess of 45 miles of its current location.

          SECTION 4. Compensation Following Termination.

     (a) Death. If the Employment Period is terminated pursuant to the provisions of Section 3(a) above due to the death of Employee, this Agreement shall terminate, and no further compensation shall be payable to Employee’s estate, heirs or beneficiaries, as applicable, except that Employee’s estate, heirs or beneficiaries, as applicable, shall be entitled to receive (i) Employee’s then current basic compensation through the end of the month in which Employee’s death occurred, (ii) a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of Employee’s death and the denominator of which is 365) of the bonus as set forth in Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employers’ Management incentive Plan are achieved, and (iii) any un-reimbursed expenses pursuant to Section 5 below, and, thereafter, Employers shall have no further obligations or liabilities hereunder to

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Employee’s estate or legal representative or otherwise, other than the payment of benefits, if any, pursuant to Section 2(c) .

     (b) Disability. If the Employment Period is terminated pursuant to the provisions of Section 3(a) above due to Employee’s total disability as determined thereunder, this Agreement shall terminate, and (i) Employers will continue the payment of Employee’s basic compensation at the then current rate until the earlier of (A) the benefits under any long-term disability insurance provided by Employers commences or (B) 180 days from the date of such total disability, (ii) Employers shall pay a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year Employee became totally disabled and the denominator of which is 365) of the bonus as set forth in Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employers’ Management Incentive Plan are achieved, and (iii) Employers shall pay any un-reimbursed expenses pursuant to Section 5 below. Thereafter, Employers shall have no obligation for basic compensation or other compensation payments to Employee during the continuance of such total disability.

     (c) Termination for Cause or Voluntary Termination. If the Employment Period is terminated for Cause pursuant to Section 3(b) 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 which by its terms survive termination.

     (d) Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Section 3(c) or 3(d) above, Employee shall be entitled (i) to continue to receive from Employers his then current basic compensation hereunder, such amount to continue to be paid in accordance with the payroll practices of Employers for a period equal to 12 months, (ii) to receive within 30 days of termination a bonus in an amount that shall be 75% of Employee’s annual base compensation, and (iii) during such 12-month p


 
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