exv10w5






Exhibit 10.5




2010 RESTRICTED STOCK AWARD AGREEMENT

THERMADYNE HOLDINGS CORPORATION




2004 STOCK INCENTIVE PLAN



     THIS RESTRICTED STOCK 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, the Compensation Committee or the Board of Directors of the Company (“Board”) acting
as the Compensation Committee (in either case, the “Committee”) has determined that the Grantee is
one of the key personnel (officer or key employee) of the Company or one of its Subsidiary
Corporations, and



     WHEREAS, the Committee believes the goals and objectives of the Company’s Long Term Incentive
Award program will be furthered by granting to the Grantee shares of Common Stock (“Restricted
Stock”) under the Amended and Restated 2004 Stock Incentive Plan (the“Plan”).



     NOW, THEREFORE, in consideration of the foregoing and of the mutual undertakings set forth in
this Plan 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 Plan, a copy of which 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 Restricted Stock




     2.1 Subject to the restrictions and risk of forfeiture set forth in this Agreement, the
Company hereby grants to the Grantee _________shares of Restricted Stock.



     2.2 Subject to the provisions of this Agreement, and except for any shares of Restricted Stock
to be held in book entry form, the Company shall issue and register on its books and records in the
name of the Grantee a certificate(s) in the number of shares of Restricted Stock subject to this
Agreement as set forth above. Each certificate shall bear a legend, substantially in the following
form:



“The sale or other transfer of the shares of stock represented by this certificate, whether
voluntary, involuntary or by operation of law, is subject to certain restrictions on transfer as
set forth in the Thermadyne Holdings Corporation Amended and Restated 2004 Stock Incentive Plan and
in the associated Agreement evidencing the award of such shares under
this Plan. A




Page 1 of 9









 








copy of this
Plan and such Agreement may be obtained from Thermadyne Holdings Corporation.”




The certificate(s) shall be retained by the Company (or its designee) until the time that all
restrictions or conditions applicable to the shares of Restricted Stock have been satisfied or
lapsed. The Grantee agrees to (i) deliver to the Company, as a precondition to the issuance of any
certificate(s) with respect to Unvested Shares, one or more stock powers, endorsed in blank, with
respect to such shares, (ii) sign such other powers and take such other actions as the Company may
reasonably request to accomplish the transfer or forfeiture of any Unvested Shares that are
forfeited under this Agreement, and (iii) authorize the Company to cause such Unvested Shares to be
cancelled or transferred in the event they are forfeited pursuant to this Agreement. “Unvested
Shares” means shares of Common Stock which are subject to forfeiture under this Agreement. If
Unvested Shares are held in book entry form, certificate(s) shall not be issued under this Section
and the Grantee agrees that the Company may give stop transfer instructions to the depository of
such shares of Restricted Stock to ensure compliance with the provisions of this Agreement. The
Grantee hereby (i) acknowledges that the Unvested Shares may be held in book entry form on the
books of the Company’s depository (or another institution specified by the Company), (ii)
irrevocably authorizes the Company to take such actions as may be necessary or appropriate to
effect a transfer or cancellation of the record ownership of such Unvested Shares that are
forfeited, (iii) agrees to sign such powers and take such other actions as the Company may
reasonably request to accomplish the forfeiture of any Unvested Shares that are forfeited under
this Agreement, and (iv) authorizes the Company to cause such shares of Common Stock to be
cancelled or transferred in the event they are forfeited pursuant to this Agreement.




Section 3. Rights and Restrictions




     3.1 Subject to the terms and conditions of this Agreement and the Plan, the shares of
Restricted Stock shall be subject to the following restrictions:




	 	a.	 	None of (i) the shares of Restricted Stock or any interest in
them, (ii) the right to vote such shares, (iii) the right to receive dividends
on such shares, or (iv) any other rights under this Agreement, may be sold,
transferred, donated, exchanged, pledged, hypothecated, assigned or otherwise
transferred, alienated or encumbered, by operation of law or otherwise, until
(and then only to the extent of) such shares are actually delivered to the
Grantee or, in the event of Grantee’s death, the Grantee’s testamentary
transferee or transferees, in accordance with this Agreement.
	 
	 	b.	 	The Grantee shall have, with respect to the shares of
Restricted Stock, all of the rights of a holder of such shares, including the
right to vote such shares and to receive any cash dividends thereon.
Additional shares of Company common stock resulting from adjustments under
Section 12 of the Plan with respect to shares of Restricted Stock subject to this
Agreement shall be treated as additional shares of Restricted Stock subject
to the same restrictions and other terms of this Agreement. Cash dividends
paid on Unvested Shares are taxable to the Grantee as compensation




Page 2 of 9









 












	 	 	 	income,
and not dividend income, and are deductible by the Company or a Subsidiary
Corporation for income tax purposes as compensation income.
	 
	 	c.	 	During the Grantee’s lifetime, shares of Restricted Stock shall
only be delivered to him or her. Any such shares transferred in accordance
with this Agreement shall continue to be subject to the terms and conditions of
this Agreement. Any transfer permitted under this Agreement shall be promptly
reported in writing to the Company’s Secretary.





     3.2 The shares of Restricted Stock will become vested (and thereby no longer subject to
forfeiture hereunder), in three equal annual installments, on each of the next three anniversaries
of the date of grant (March 9 of 2011, 2012, and 2013); provided however, that Restricted Stock
will vest only if the Grantee is continuously employed by the Company through the scheduled date(s)
of vesting.



     3.3 Notwithstanding anything in this Agreement to the contrary, all restrictions, except those
under Section 5, if any, on shares of Restricted Stock granted under this Agreement shall lapse
upon the consummation of a Change of Control (as defined in the Plan) and certificate(s) or other
evidence of ownership of such shares shall be delivered to the Grantee or, in the event of his or
her death, to his or her Designated Beneficiary or Beneficiaries or testamentary transferees.



     3.4 The Grantee may designate a beneficiary or beneficiaries (“Designated Beneficiary or
Beneficiaries”) on the Designated Beneficiary form attached to this Agreement to receive Restricted
Stock 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 shares of Restricted Stock shall be transferred
in accordance with the Grantee’s will or, if the Grantee has no will, in accordance with the
applicable state laws of descent and distribution. Any person or entity acquiring Restricted Stock
after the Grantee’s death shall be bound by all the terms and conditions of the Plan and this
Agreement which would have applied to such shares if the Grantee had lived including, without
limitation, the provisions of Section 5.



Section 4. Termination of Employment




     4.1 All shares of Restricted Stock, 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 shares of Restricted Stock that have vested but have not been
transferred to Grantee as of the last day of Grantee’s employment, the certificate(s) evidencing
ownership shall be delivered to the Grantee, or the shares held in book entry form shall be
transferred in accordance with the reasonable instructions of the Grantee, as the case may be,
as soon as practicable, subject to applicable securities laws.



     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 the shares of Restricted Stock
are to be transferred to him or her under Section 4.2, subject to applicable



Page 3 of 9









 





securities laws,
shares of Restricted Stock shall be transferred to his or her testamentary transferee at the time
and in the manner described in Section 3.4.




     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 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 shares
of Restricted Stock granted under this Agreement.




			
	Section 5.	 	Securities Law Restrictions and Other Restrictions on Transfer of Shares of
Restricted Stock Pursuant to this Agreement






	 	a.	 	The Grantee represents that upon receipt of shares of
Restricted Stock, such shares shall be for the Grantee’s own account and not on
behalf of others. Federal and state securities laws govern and restrict the
Grantee’s right to offer, sell or otherwise dispose of any such shares unless
the shares are first registered under the Securities Act of 1933 (the
“Securities Act”) and state securities laws (which the Company is not required
to do), or in the opinion of the Company’s counsel, such offer, sale or other
disposition is exempt from registration or qualification thereunder. The
Grantee shall not offer, sell or otherwise dispose of any shares purchased
pursuant to this Agreement in any manner unless they are first registered under
the Securities Act and any applicable state securities laws except in a
transaction which, in the opinion of counsel to the Company, is exempt from the
registration requirements.






	 	b.	 	Restrictive Legend. Except as may be otherwise
determined by legal counsel to the Company, the certificates representing the
shares of Common Stock granted pursuant to this Agreement shall bear the
following legend, plus other legends the Company deems necessary or desirable
in connection with securities laws or other rules, regulations or laws.






	 	 	 	THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND ARE “RESTRICTED SECURITIES”
AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT, OR (ii) IN
COMPLIANCE WITH RULE 144, OR (iii) PURSUANT TO AN OPINION OF COUNSEL TO THE
CORPORATION THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID
SALE, OFFER OR DISTRIBUTION.




Page 4 of 9









 











Section 6. 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 7. Withholding Taxes




     Whenever under the Plan and this Agreement shares of Common Stock are to be delivered, the
Company shall be entitled to require as a condition of delivery that the Grantee remit an amount
sufficient to satisfy all federal, state and other governmental withholding tax requirements
related thereto (including such taxes attributable to an election under Section 8 of this
Agreement); provided, that in lieu of or in addition to the foregoing, the Company shall have the
right to withhold such sums from compensation or other amounts otherwise due to the Grantee.



Section 8. Requirement of Notification on Section 83(b) Election




     If the Grantee shall, in connection with the receipt of Restricted Stock, make the election
permitted under Section 83(b) of the Code (i.e., an election to include in his or her gross income
in the year of transfer the amounts specified in Section 83(b) of the Code), he or she shall notify
the Company of such election within ten days of filing notice of the election with the Internal
Revenue Service, in addition to any filing and notification required pursuant to regulations issued
under the authority of Section 83(b) of the Code.



Section 9. Adjustments Upon Changes in Capitalization




     In the event of any increase or decrease, after the date of this Agreement, in the number of
issued shares of Common Stock resulting from the subdivision or combination of shares of Common
Stock or other capital adjustments, or the payment of a stock dividend, or other increase or
decrease in such shares effected without receipt of consideration by the Company, the Committee
shall proportionately adjust the number of shares of Restricted Stock and any and all other matters
deemed appropriate by the Committee; provided, however, that any fractional shares resulting from
any such adjustment shall be eliminated. Adjustments under this Section shall be made by the
Committee, whose determination as to what adjustments shall be made, and the extent thereof, shall
be final, binding and conclusive.



Section 10. 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.




Page 5 of 9












 





Section 11. Nature of Payments




     11.1 Any and all grants of shares of Restricted Stock hereunder shall be in consideration of
services performed by the Grantee for the Company or for its Subsidiary Corporations.



     11.2 Any and all issuances of shares of Restricted Stock hereunder shall constitute a special
incentive payment to the Grantee. Such issuances and/or income realized upon the grant of shares of
Restricted Stock 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 12. 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 13. Section Headings




     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 14. 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, 16052 Swingley
Ridge Court, Suite 300, Chesterfield, MO 63017, 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 15. 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 3.4, the heirs and personal
representatives of the Grantee.



Page 6 of 9









 





Section 16. 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 17. 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 18. 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.



Section 19. 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 20. 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.



Page 7 of 9









 





Section 21. 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:
	 	 	 	 	 	 	 	 
	 

	 	Nick H. Varsam
	 	 	 	Grantee’s Name:	 	 	 	 
	 

	 	General Counsel & Secretary
	 	 	 	Date of Signature:	 	 	 	 
	 

	 	 	 	 	 	Grantee’s Address:
	 	 	 	 






Page 8 of 9









 






2010 RESTRICTED STOCK AWARD AGREEMENT

THERMADYNE HOLDINGS CORPORATION

BENEFICIARY DESIGNATION




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 Amended and Restated 2004 Stock Incentive Plan (the
“Plan”), and the 2010 Restricted Stock 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 all shares of Restricted Stock 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 shares shall be transferred in
accordance with the terms of the Agreement.




This Beneficiary Designation shall be controlled by the laws of the State of Missouri and
particularly RSMo Chapter 461 thereof.




	 	 	 

	 
	 

Date of this Designation

	 	 

Signature of Participant






NOTE: Unless provided otherwise in this Beneficiary Designation, the Company shall transfer
all shares of Restricted Stock to be transferred to more than one Designated Beneficiary equally to
the living Designated Beneficiaries.





Page 9 of 9