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