**Exhibit 10.17**

 

**SECONDAMENDED AND RESTATEDEXECUTIVE EMPLOYMENT AGREEMENT**

** **

THIS SECOND AMENDED AND RESTATED EXECUTIVE EMPLOYMENTAGREEMENT (this “Agreement”) is made and entered into as of January 1,2004 by and among Thermadyne Holdings Corporation, a Delaware corporation (“Holdings”),and its subsidiaries (together with Holdings, the “Employers”), and **Terry Downes** (“Employee”).

 

**RECITALS**

** **

A. TheParties desire Employee to be employed by Employers in the capacity of **Vice President – Global Corporate Development**; and

 

B. The Parties desire toset forth the terms and conditions of such employment to which each Party willbe bound;

 

NOW THEREFORE, for and in consideration of theforegoing recitals, and in consideration of the mutual covenants, agreements,understandings, undertakings, representations, warranties and promiseshereinafter set forth, and intending to be legally bound thereby, Employers andEmployee do hereby covenant and agree as follows:

 

## *(a)**                               BasicEmployment Provisions*

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### (i)                                     *Employment and Term*.  Employers hereby employ Employee (hereinafterreferred to as the “Employment”) as **Vice President – GlobalCorporate Development**and Employee agrees to be employed byEmployers in such capacity, all on the terms and conditions set forthherein.  The Employment shall be for aperiod (the “Employment Period”) that will (i) commence on March 12,2004 (the “Effective Date”) and continue for at least two yearsthereafter (unless earlier terminated as provided herein) and (ii) renew on thesecond anniversary of the Effective date and each anniversary of the thereafterfor a one-year period, on the same terms and conditions contained herein(unless earlier terminated as provided herein or Employee is timely provided anotice of nonrenewal as provided herein), such that the Employment Period shallextend for a period of one year from the date of each such extension.  The Employers must provide Employee withwritten notice not less than 60 days in advance of the applicable anniversaryof the Effective Date in order to avoid renewal of the Employment Period onsuch anniversary as described above. Notice shall be deemed given on the date it is received by theEmployee.  If Employers elect not torenew the Employment Period in accordance with this Section 1(a),Employee shall be entitled to continue to receive from Employers his thencurrent basic compensation hereunder, such amount to continue to be paid inaccordance with the payroll practices of Employers for a period equal to six(6) months from the expiration of the Employment Period.

 

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### (ii)                                  *Duties*.  Employeeshall be subject to the direction and supervision of Holding’s Chief ExecutiveOfficer or his delegate (the “CEO”) and, as the **VicePresident – Global Corporate Development**, shall have those dutiesand responsibilities which are assigned to him during the Employment Period bythe CEO consistent with his position. The parties expressly acknowledge that the Employee shall devote all ofhis business time and attention to the transaction of Employers’ businesses asis reasonably necessary to discharge his supervisory managementresponsibilities hereunder.  Employeeagrees to perform faithfully the duties assigned to him to the best of hisability.

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## (b)                                 *Compensation*.

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### (i)                                     *Salary*.  Employersshall pay to Employee during the Employment Period a salary as basiccompensation for the services to be rendered by Employee hereunder (“BasicCompensation”).  As of the date thisAgreement is signed, the initial Basic Compensation shall be **$135,000**per annum. Such Basic Compensation shall be reviewed no less frequently thanannually by the CEO and may be adjusted by the CEO, subject to approval of theBoard of Directors. Such salary shall accrue and be payable in accordance withthe payroll practices of Employers’ subsidiary or subsidiaries in effect fromtime to time.  All such payments shall besubject to deduction and withholding authorized or required by applicable law.

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### (ii)                                  *Bonus*.  During theEmployment Period, Employee shall additionally participate in an annual bonusplan providing for an annual bonus opportunity of not less than **50%** of Employee’s annual salary for the calendar yearsthereafter, paid in accordance with the terms set forth in Employers’ thencurrent Management Incentive Plan.

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### (iii)                               *Benefits*.  During theEmployment Period, Employee shall be entitled to participate in such employeebenefit plans, programs and arrangements made available to, and on the sameterms as, other similarly situated executives of Employers, including, withoutlimitation, 401(k) plans, tax qualified profit sharing plans and any otherretirement plans, savings plans or deferred compensation plans, health, grouplife (excluding any optional additional coverage), short term disability, longterm disability (not to exceed 60% of Employee’s Basic Compensation otherwisepayable to him for the applicable period), hospitalization and such otherbenefit programs as may be approved from time to time by Employers for theirexecutives.  Nothing herein shall affectEmployers’ right to amend, modify or terminate any retirement or other benefitplan at any time on a company-wide basis for similarly situated executives.

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### (iv)                              *Stock Options. *Holdingswill grant Employee stock options (the “Options”) to purchase up to **25,000** shares the Common Stock of Holdings****(the “Common Stock”) in accordance with the terms andconditions of Holdings’ stock option plan. The exercise price for the Optionsis equal to the closing bid price per share of the Common Stock on theover-the-counter market as of the close of business immediately preceding thedate the grant was approved by the Board of Directors.  Subject in each case to Employee’s executionand delivery of this Agreement and continued Employment until the applicablevesting date, one-half of the Options will become vested and, subject tocompliance with applicable securities laws, exercisable in three equal annualinstallments on August 1, 2004; August 1, 2005, and August 1,2006, and the remaining one-half of the Options (the “Performance Options”)will become vested and, subject to compliance with applicable securities laws,exercisable in three equal

 

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### annual installments oneach of the first three anniversaries of the date of grant (each an “InstallmentDate”) if Holdings achieves its Return on Invested Capital Targets inaccordance with its annual budget for the immediately preceding fiscalyear.  If any Performance Options do notvest in any year due to the failure to meet the Return on Invested CapitalTargets for such year, such Options shall vest on any subsequent InstallmentDate if Holdings has cumulatively achieved on such date the Return on InvestedCapital Targets for the current year, plus the Return on Invested CapitalTargets for the prior years for which such Targets were not achieved (aftertaking into account any portion of such Targets achieved in such prior years).

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## (c)                                  *Termination*.

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### (i)                                     *Death or Disability*. Employment of Employee under this Agreement shall terminateautomatically upon the death or total disability of Employee.  For the purpose of this Agreement, “totaldisability” shall be deemed to have occurred if Employee shall have beenunable to perform the duties of his Employment due to mental or physicalincapacity for a period of (i) 90 consecutive days or (ii) 120 non-consecutivedays within any 365 day period.

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### (ii)                                  *Cause*.  The CEO,subject to the approval of the Board of Directors, may terminate the Employmentof Employee under this Agreement for Cause. For the purposes of this Agreement, “Cause” shall be deemed to be(i) the conviction of a crime by Employee constituting a felony or other crimeinvolving moral turpitude, (ii) an act of dishonesty or disloyalty by Employeethat resulted in or was intended to result in gain to or personal enrichment ofEmployee at any of the Employers’ expense; (iii) the willful engaging byEmployee in misconduct which is injurious to any of the Employers; (iv)Employee’s failure to comply with the material terms of this Agreement; (v)misappropriation by Employee of Employers’ funds; (vi) habitual abuse ofalcohol, narcotics or other controlled substances by Employee; (vii) grossnegligence in the performance of Employee’s duties and responsibilitieshereunder; (viii) failure by Employeeto comply fully with any lawful directives of the CEO or the Employers; (ix)failure by Employee to comply fully with any lawful directives of the Board ofDirectors of Holdings (the “Board”) adopted by formal writtenresolutions of the Board; or (x) failure to perform or adhere to theCode of Ethics adopted by the Board, as the same may be amended by the Boardfrom time to time, a copy of which has been delivered to Employee as adopted bythe Board as of the date hereof.

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### (iii)                               *Without Cause*.  Any ofthe Employers, acting alone, may terminate the Employment of Employee underthis Agreement without Cause.

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### (iv)                              *Constructive Termination*. Employee may elect to terminate his Employment under this Agreement,effective immediately, upon a Constructive Termination Without Cause, asdefined below, by providing Employer written notice within thirty days ofEmployee becoming aware of such Constructive Termination Without Cause.  For purposes of this Agreement, “ConstructiveTermination Without Cause” shall mean a termination of the Employee’semployment at his initiative following the occurrence, without the Employee’sprior written consent, of one or more of the following events:

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#### (1)                                  anyfailure by the Employers to comply with any of the provisions of thisAgreement, other than an isolated, insubstantial and inadvertent failure notoccurring in

 

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#### bad faith and which isremedied by the Employers within 30 days after receipt of written noticethereof given by the Employee;

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#### (2)                                  withoutthe Employee’s consent, any reduction in salary, bonus percentage, or materialreduction in duties;

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#### (3)                                  anypurported termination by the Employers of the Employee’s employment otherwisethan as expressly permitted by Section 3(b) of this Agreement;

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#### (4)                                  anyfailure by the Employers to comply with and satisfy the provisions of Section 6hereof, or failure by any successor (whether direct or indirect, by purchase,merger, consolidation or otherwise) to all or substantially all of the businessand/or assets of the Employers to assume expressly and agree to perform thisAgreement in the same manner and to the same extent the Employers would berequired to perform it if no such succession had taken place, provided, ineither case, that the successor contemplated by Section 6 hereofhas received, at least 10 days prior to the giving of notice of constructivetermination by the Employee, written notice from the Employers or the Employeeof the requirements of the provisions of Section 6 or of suchfailure;  or

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(v)                                 theEmployers require the Employee to relocate more than one time from hisprincipal work site to a principal work site that is more than seventy-five(75) miles from Employee’s principal work site as of the date of thisAgreement.

 

## (d)                                 *Compensation Following Termination*.

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### (i)                                     *Death. *If theEmployment Period is terminated pursuant to the provisions of Section 3(a)above**due to the death of Employee, thisAgreement shall terminate, and no further compensation shall be payable toEmployee’s estate, heirs or beneficiaries, as applicable, except that Employee’sestate, heirs or beneficiaries, as applicable, shall be entitled to receive (i)Employee’s then current Basic Compensation through the end of the month inwhich Employee’s death occurred, (ii) a pro rata portion (based on a fractionthe numerator of which is the number of days Employee worked in the year ofEmployee’s death and the denominator of which is 365) of the bonus as set forthin Section 2(b) which Employee would have been entitled to receivefor the year in which termination occurs if the performance objectivesestablished in Employers’ Management Incentive Plan are achieved, and (iii) anyun-reimbursed expenses pursuant to Section 5 below, and,thereafter, Employers shall have no further obligations or liabilitieshereunder to Employee’s estate or legal representative or otherwise, other thanthe payment of benefits, if any, pursuant to Section 2(c).

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### (ii)                                  *Disability*.  If theEmployment Period is terminated pursuant to the provisions of Section 3(a)above due to Employee’s total disability as determined thereunder, thisAgreement shall terminate, and (i) Employers will continue the payment ofEmployee’s Basic Compensation at the then current rate until the earlier of (A)the benefits under any long-term disability insurance provided by Employerscommences 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 ofwhich is the number of days Employee worked in the year Employee became totallydisabled and the denominator of which is 365) of the bonus as set forth in Section 2(b)which Employee would

 

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### have been entitled toreceive for the year in which termination occurs if the performance objectivesestablished in Employers’ Management Incentive Plan are achieved, and (iii)Employers shall pay any un-reimbursed expenses pursuant to Section 5below.  Thereafter, Employers shall haveno obligation for Basic Compensation or other compensation payments to Employeeduring the continuance of such total disability.

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### (iii)                               *Termination for Cause or Voluntary Termination*.  If the Employment Period is terminated forCause 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 toEmployee after the date of termination, but Employee shall be entitled toreceive benefits to which he is or may become entitled pursuant to any benefitplan which by its terms survive termination.

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### (iv)                              *Termination Without Cause; Constructive Termination*.  If the Employment Period is terminatedpursuant to Section 3(c) or 3(d) above, Employee shall be entitled(i) to continue to receive from Employers his then current Basic Compensation,such amount to continue to be paid in accordance with the payroll practices ofEmployers for a period equal to 12 months, (ii) to receive his bonus pursuantto Section 2(b) for the year in which Employee is terminated, (iii)during such 12-month period, to continue to receive the benefits to which hewould otherwise be entitled during the Employment Period pursuant to Section 2(c)above; provided that Employee shall continue to make the samecontributions toward such coverage as Employee was making on the date oftermination, with such adjustments to contributions as are made generally forall Employers’ employees, and (iv) during such 12-month period, to a monthlyautomobile allowance as contemplated by Section 5 below; provided,however, that Employee shall no longer be entitled to participate in anyof Employers’ 401K plans, excess savings plans, tax qualified profit sharingplans or any other retirement plans. Employee shall have the option to receive the present value of the compensation,bonus and benefits (at a 12% discount) described in the immediately precedingsentence in a lump sum payment, with such option to be exercised by Employee inwriting within ten (10) days of termination and Employer shall make such lumpsum payment within thirty (30) days of receiving the written notice fromEmployee.  In the event of Employee’sdeath during such 12-month period, such continuation of compensation, benefitsand monthly automobile allowance shall cease upon Employee’s death.  In the event Employee obtains employmentelsewhere during such 12-month period such compensation, benefits and monthlyautomobile allowance shall continue for the period described abovenotwithstanding such reemployment of Employee; provided, however,that Employers’ obligations for compensation bonus, benefits and monthlyautomobile allowance shall be reduced by the amount Employee receives from hisnew employer for compensation bonus, benefits and automobile allowance.  The sums received by Employee under this Section 4(d)shall be considered liquidated damages in respect of claims based on anyprovisions of this Agreement or any claims arising out of Employee’s employmentwith Employers, and the commencement of the payment of such sums by Employersshall not begin until Employee executes and delivers a general release of allclaims in form and substance satisfactory to Employers.

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## (e)                                  *Expense Reimbursement*. Upon the submission of properly documented expense account reports,Employers shall reimburse Employee for all reasonable business-related traveland entertainment expenses incurred by Employee in the course of his Employmentwith Employers, including the ownership and use of a cellular phone, and aninternet service provider

 

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## account.  Employers shall provide Employee with amonthly car allowance of $500**,**lessapplicable withholdings.  Unlessotherwise expressly provided in this Agreement, Employers’ obligations underthis Section 5 shall terminate upon the termination of the EmploymentPeriod, except for any obligation to reimburse expenses that are incurred priorto such termination.

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## (f)                                    *Assignability Binding Nature*.  This Agreement shall be binding and inure tothe benefit of the parties, and their respective successors, heirs (in the caseof Employee) and assigns.  No obligationsof the Employers under this Agreement may be assigned or transferred by theEmployers except that such obligations shall be assigned or transferred (asdescribed below) pursuant to a merger or consolidation of Holdings in whichHoldings is not the continuing entity, or the sale or liquidation of all orsubstantially all of the assets of the Employers, provided that the assignee ortransferee is the surviving entity or successor to all or substantially all ofthe assets of the Employers and such assignee or transferee assumes theliabilities, obligations and duties of the Employers, as contained in thisAgreement, either contractually or as a matter of law.  Each Employer may, without the prior writtenconsent of Employee, assign its rights and obligations under this Agreement, inwhole or in part, including, without limitation, the rights and obligations setforth in Section 7 through Section 9, to any one or more of itsaffiliates or any entity that acquires a substantial part of its assets or asuccessor by merger, consolidation or other corporate restructuring.  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 assumesand agrees to perform this Agreement by operation of law, or otherwise.

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## (g)                                 *Confidential Information*.

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### (i)                                     *Non-Disclosure*. During the Employment Period or at any time thereafter, irrespective ofthe time, manner or cause of the termination of this Agreement, Employee willnot directly or indirectly reveal, divulge, disclose or communicate to anyperson or entity, other than authorized officers, directors and employees ofthe Employers, in any manner whatsoever, any Confidential Information (ashereinafter defined) of Employers or any subsidiary of Employers without theprior written consent of the Board.

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### (ii)                                  *Definition*.  As usedherein, “Confidential Information” means information disclosed to orknown by Employee as a direct or indirect consequence of or through theEmployment about Employers or any subsidiary of Employers, or their respectivebusinesses, products and practices which information is not generally known inthe business in which Employers or any subsidiary of Employers is or may beengaged.  However, ConfidentialInformation shall not include under any circumstances any information withrespect to the foregoing matters which is (i) directly available to the publicfrom a source other than Employee, (ii) released in writing by Employers to thepublic or to persons who are not under a similar obligation of confidentialityto Employers and who are not parties to this Agreement, (iii) obtained byEmployee from a third party not under a similar obligation of confidentialityto Employers, (iv) required to be disclosed by any court process or anygovernment or agency or department of any government, or (v) the subject of awritten waiver executed by any of the Employers for the benefit ofEmployee.  In the event Employee believesthat he is free to disclose or utilize Confidential Information under Section 7(b),he shall give written notice of the

 

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### same to Employers atleast 30 days prior to the release or use of such Confidential Information andshall specify the claimed exemption and the circumstances giving rise thereto.

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### (iii)                               *Return of Property*. Upon termination of the Employment, Employee will surrender to Employersall Confidential Information, including, without limitation, all lists, charts,schedules, reports, financial statements, books and records of the Employers orany subsidiary of the Employers, and all copies thereof, and all other propertybelonging to the Employers or any subsidiary of the Employers, including,without limitation, company credit cards, cell phones, personal data assistantsor other electronic devices, provided Employee shall be accorded reasonableaccess to such Confidential Information subsequent to the Employment Period forany proper purpose as determined in the reasonable judgment of any of theEmployers.

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## (h)                                 *Agreement Not to Compete*.

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### (i)                                     *Termination for Cause*. In the event that Employee is terminated for Cause or voluntarilyterminates his Employment with Employers other than as a ConstructiveTermination Without Cause, Employee hereby agrees that for a period of 12months following such termination, he shall not, either in his own behalf or asa partner, officer, director, employee, agent or shareholder (other than as theholder of less than 5% of the outstanding capital stock of any corporation witha 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 orrender services to any person or entity engaged in the businesses in whichEmployers or any subsidiary of Employers are then engaged and situated withinany country.  Nothing contained in this Section 8(a)shall be construed as restricting the Employee’s right to sell or otherwisedispose of any business or investments owned or operated by Employee as of thedate hereof.

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### (ii)                                  *Termination Without Cause or for Disability; Constructive Termination*.  In the event that the Employment of Employeeis terminated by Employers without Cause or the non-renewal of the EmploymentPeriod by Employers or as a result of the total disability of Employee or byEmployee as a Constructive Termination Without Cause, Employee hereby agreesthat during the period that theEmployers are required to make payment to Employee (regardless of whetherEmployee accepts such payment, elects to receive a lump sum of such payment,refuses to execute and deliver a general release as required hereunder or ifsuch obligation is reduced in any way due to Employee’s employment elsewhere) pursuantto Section 4(b), Section 4(c) or Section 4(d)above, as applicable, neither he nor any affiliate shall, either in his ownbehalf or as a partner, officer, director, employee, agent or shareholder(other than as the holder of less than 5% of the outstanding capital stock ofany, 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 thebusinesses in which Employers or any subsidiary of Employers is then engagedand situated within any country.  Nothingcontained in this Section 8(b) shall be construed as restrictingthe Employee’s right to sell or otherwise dispose of any business orinvestments owned or operated by Employee as of the date hereof.

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## (i)                                     *Agreement Not to Solicit Employees*.  Employee agrees that, for a period of two (2)years following the termination by reason of voluntary termination by Employeeor

 

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## termination for Cause,neither he nor any affiliate shall, on behalf of any business engaged in abusiness competitive with Employers or any subsidiary of Employers, solicit orinduce, or in any manner attempt to solicit or induce any person employed by,or any agent of, any Employers or any subsidiary of Employers to terminate hisemployment or agency, as the case may be, with any Employers or such subsidiary;provided that such limitations shall not apply if the contact with theemployee, agent or consultant is initiated by a third party, not engaged orhired by Employee or any affiliate of Employee, on a “blind basis” such asthrough a head hunter.

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## (j)                                     *Injunctive Relief and other Remedies*.

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### (i)                                     Employeeacknowledges and agrees that the covenants, obligations and agreements ofEmployee contained in Section 7, Section 8, Section 9and this Section 10 relate to special, unique and extraordinarymatters and that a violation of any of the terms of such covenants, obligationsor agreements will cause Employers irreparable injury for which adequateremedies are not available at law. Therefore, Employee agrees that Employers shall be entitled to aninjunction, restraining order or such other equitable relief (without therequirement to post bond) as a court of competent jurisdiction may deemnecessary or appropriate to restrain Employee from committing any violation ofsuch covenants, obligations or agreements.

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### (ii)                                  Inthe event of Employee’s violation of the provisions of Section 7after the Employment of Employee is terminated for any reason, Section 8or Section 9, the right of Employee to receive any further paymentpursuant to this Agreement shall immediately terminate and the payments made toEmployee subsequent to the termination of Employee’s Employment pursuant tothis Agreement shall be returned to Employers by Employee within thirty (30)days after receipt of written notice from Employers of such violation.  The injunctive remedies and other remediesdescribed in this Section 10 are cumulative and in addition to anyother rights and remedies Employers may have.

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## (k)                                  *No Violation*. Employee hereby represents and warrants to Employers that the execution,delivery and performance of this Agreement by Employee does not, with orwithout 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 provisionof Any agreement or understanding to which the Employee or, to the bestknowledge of Employee, any of Employee’s affiliates are a party or by whichEmployee, or to the best knowledge of Employee, Employee’s affiliates may bebound or affected.

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## (l)                                     *Captions*.  Thecaptions, headings and arrangements used in this Agreement are for convenienceonly and do not in any way affect, limit or amplify the provisions hereof.

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## (m)                               *Notices*.  All Noticesrequired or permitted to be given hereunder shall be in writing and shall bedeemed delivered, whether or not actually received, two days after deposited inthe United States mail, postage prepaid, registered or certified mail, returnreceipt requested, addressed to the party to whom notice is being given at thespecified address or at such other address as such party may designate bynotice:

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Employers:                                     ThermadyneHoldings CorporationAttn: Chief Executive Officer

16052Swingley Ridge Road, Suite 300St.  Louis, MO 63017Fax: 636.728.3010

 

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and

 

Thermadyne Holdings CorporationAttn: Vice President and General Counsel 16052 Swingley Ridge Road, Suite 300St.  Louis, MO 63017 Fax: 636.728.3011

 

Employee:                                         16052Swingley Ridge Road, Suite 300

St.  Louis, MO 63017

 

## (n)                                 *Invalid Provisions*. If any provision of this Agreement is held to be illegal, invalid orunenforceable under present or future laws, such provisions shall be fullyseverable, and this Agreement shall be construed and enforced as if suchillegal, invalid or unenforceable provision had never comprised a part of thisAgreement; the remaining provisions of this Agreement shall remain in fullforce and effect and shall not be affected by the illegal, invalid orunenforceable provision or by its severance for this Agreement.  In lieu of each such illegal, invalid orunenforceable provision, there shall be added automatically as part of thisAgreement a provision as similar in terms to such illegal, invalid orunenforceable provision as may be possible and be legal, valid and enforceable.

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## (o)                                 *Amendments*.  ThisAgreement may be amended in whole or in part only by an instrument in writingsetting forth the particulars of such amendment and duly executed by an officerof Employers and by Employee.

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## (p)                                 *Waiver*.  Except asotherwise provided herein, no delay or omission by any party hereto to exerciseany right or power hereunder shall impair such right or power or be construedas a waiver thereof.  A waiver by any ofthe parties hereto of any of the covenants to be performed by any other partyor any breach thereof shall not be construed to be a waiver of any succeedingbreach thereof or of any other covenant herein contained.  Except as otherwise expressly set forthherein, all remedies provided for in this Agreement shall be cumulative and inaddition to and not in lieu of any other remedies available to any party atlaw, in equity or otherwise.

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## (q)                                 *Counterparts; Reproduction*. This Agreement may be executed in multiple counterparts, each of whichshall constitute an original, and all of which together shall constitute oneand the same Agreement, and any copy,facsimile or other reliable reproduction of this Agreement may be substitutedor used in lieu of the original writing for any and all purposes for which theoriginal writing could be used, provided that such copy, facsimile or otherreproduction be a complete reproduction of the entire original writing.

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## (r)                                    *Governing Law*.  ThisAgreement shall be construed and enforced according to the laws of the State ofMissouri.

 

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## (s)                                  *Resolution of Disputes; Arbitration. *Any dispute arising out of or relating to this Agreement orEmployee’s employment with Employers or the termination thereof shall beresolved first by negotiation between the parties.  If such negotiations leave the matterunresolved after 60 days, then such dispute or claim shall be resolved bybinding confidential arbitration, to be held in St. Louis, Missouri, inaccordance with the rules of the American Arbitration Association. Thearbitrator in any arbitration provided for herein will be mutually selected bythe parties or in the event the parties cannot mutually agree, then appointedby the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be entered in anycourt having jurisdiction thereof.  Theparties shall be responsible for their own costs and expenses under this Section 19.

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## (t)                                    *Payment Upon Death of Employee*.  In the event of the death of Employee duringthe term hereof, any unpaid payments due either prior to Employee’s death orafter Employee’s death shall be payable as designated by Employee prior to hisdeath in writing to Employers.  In theevent of the death of all such persons so designated by Employee, either priorto the death of the Employee or during any time when payments are due asprovided herein, or in the event Employee fails to so designate prior to hisdeath, or withdraws all such designations, said payments thereafter shall bemade to Employee’s estate.

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## (u)                                 *Prior Employment Agreements*. This Agreement supersedes any and all other employment,change-in-control, severance or similar agreements between Employee andEmployers, including, without limitation, the Prior Employment Agreement andthe Letter Agreement.  Employeeirrevocably waives all rights, if any, to claim that Employee’s employmentunder the Prior Employment Agreement was terminated, constructively orotherwise, prior to the date hereof.

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## (v)                                 *Jointly and Severally Liable*.  Each of the Employers that have signed belowis a party to this Agreement and is jointly and severally liable for theobligations of Employers set forth in this Agreement.

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## (w)                               *Employee Acknowledgements*.  Employee acknowledges and agrees that (a) hehas read this Agreement; (b) he is fully competent to execute this Agreementwhich he understands to be contractual; (c) he executes this Agreement of hisown free will, after having a reasonable period of time to review, study, anddeliberate regarding its meaning and effect and to consult with counsel regardingsame; and (d) without reliance on any representation of any kind or characternot expressly set forth herein.

 

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IN WITNESS WHEREOF, the parties hereto have executedand delivered this Amended and Restated Executive Employment Agreement as ofthe date first above written.

 
|   | EMPLOYEE:                           |
|--------|-------------------------------------|
|   |                                |
|   | \s\ Terry Downes                    |   |
|   | **Terry Downes**                    |
|   |                                |
|   |                                |
|   | EMPLOYERS:                          |
|   |                                |
|   | **Thermadyne Holdings Corporation** |
|   |                                |
|   | By:                                 | \s\ James H. Tate |   |
|   |                                | James H. Tate |
|   | Title:                              | Sr. Vice President and CFO |
|        |                                     |  |  |

 

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