Exhibit 10.17


 


SECOND
AMENDED AND RESTATED

EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS SECOND AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT (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. The
Parties desire Employee to be employed by Employers in the capacity of Vice President – Global Corporate Development; 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, Employers and
Employee do hereby covenant and agree as follows:


 


(a)                               Basic
Employment Provisions


 


(i)                                     Employment and Term.  Employers hereby employ Employee (hereinafter
referred to as the “Employment”) as Vice President – Global
Corporate Development 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 March 12,
2004 (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 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 nonrenewal 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 60 days in advance of the applicable anniversary
of the Effective Date in order to avoid renewal of the Employment Period on
such anniversary as described above. 
Notice shall be deemed given on the date it is received by the
Employee.  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 six
(6) months from the expiration of the Employment Period.


 





















 


(ii)                                  Duties.  Employee
shall be subject to the direction and supervision of Holding’s Chief Executive
Officer or his delegate (the “CEO”) and, as the Vice
President – Global Corporate Development, 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 all of
his business time and attention to the transaction of Employers’ businesses as
is reasonably necessary to discharge his supervisory management
responsibilities hereunder.  Employee
agrees to perform faithfully the duties assigned to him to the best of his
ability.


 


(b)                                 Compensation.


 


(i)                                     Salary.  Employers
shall pay to Employee during the Employment Period a salary as basic
compensation for the services to be rendered by Employee hereunder (“Basic
Compensation”).  As of the date this
Agreement is signed, the initial Basic Compensation shall be $135,000 per annum. 
Such Basic Compensation shall be reviewed no less frequently than
annually by the CEO and may be adjusted by the CEO, subject to approval of the
Board of Directors. 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.


 


(ii)                                  Bonus.  During the
Employment Period, Employee shall additionally participate in an annual bonus
plan providing for an annual bonus opportunity of not less than 50% of Employee’s annual salary for the calendar years
thereafter, paid in accordance with the terms set forth in Employers’ then
current Management Incentive Plan.


 


(iii)                               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, tax qualified profit sharing plans and any other
retirement plans, savings plans or deferred compensation plans, health, group
life (excluding any optional additional coverage), short term disability, long
term disability (not to exceed 60% of Employee’s Basic Compensation 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.  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.


 


(iv)                              Stock Options.  Holdings
will 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 and
conditions of Holdings’ stock option plan. The exercise price for the Options
is equal to the closing bid price per share of the Common Stock on the
over-the-counter market as of the close of business immediately preceding the
date the grant was approved by the Board of Directors.  Subject in each case to Employee’s execution
and delivery of this Agreement and 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 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 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).


 


(c)                                  Termination.


 


(i)                                     Death or Disability. 
Employment of Employee under this Agreement shall terminate
automatically upon the death or total disability of Employee.  For the purpose of this Agreement, “total
disability” shall be deemed to have occurred if Employee shall have been
unable to perform the duties of his Employment due to mental or physical
incapacity for a period of (i) 90 consecutive days or (ii) 120 non-consecutive
days within any 365 day period.


 


(ii)                                  Cause.  The CEO,
subject to the approval of 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) the conviction of a crime by Employee constituting a felony or other crime
involving moral turpitude, (ii) an act of dishonesty or disloyalty by Employee
that resulted in or was intended to result in gain to or personal enrichment of
Employee at any of the Employers’ expense; (iii) the willful engaging by
Employee 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 of
alcohol, narcotics or other controlled substances by Employee; (vii) gross
negligence in the performance of Employee’s duties and responsibilities
hereunder; (viii) failure by Employee
to 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 of
Directors of Holdings (the “Board”) adopted by formal written
resolutions of the Board; or (x) failure to perform or adhere to the
Code of Ethics adopted by the Board, as the same may be amended by the Board
from time to time, a copy of which has been delivered to Employee as adopted by
the Board as of the date hereof.


 


(iii)                               Without Cause.  Any of
the Employers, acting alone, may terminate the Employment of Employee under
this Agreement without Cause.


 


(iv)                              Constructive Termination. 
Employee may elect to terminate his Employment under this Agreement,
effective immediately, upon a Constructive Termination Without Cause, as
defined below, by providing Employer written notice within thirty days of
Employee becoming aware of such Constructive Termination Without Cause.  For purposes of this Agreement, “Constructive
Termination Without 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:


 


(1)                                  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


 


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


 


(2)                                  without
the Employee’s consent, any reduction in salary, bonus percentage, or material
reduction in duties;


 


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


 


(4)                                  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;  or


 


(v)                                 the
Employers require the Employee to relocate more than one time from his
principal 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 this
Agreement.


 


(d)                                 Compensation Following Termination.


 


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


 


(ii)                                  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


 


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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.


 


(iii)                               Termination for Cause or Voluntary Termination.  If the Employment Period is terminated for
Cause or voluntarily by the Employee for reasons other than those described in Section 3(a)
or 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.


 


(iv)                              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,
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 his bonus pursuant
to 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 he
would otherwise be entitled during the Employment Period pursuant to Section 2(c)
above; provided that Employee shall continue to make the same
contributions toward such coverage as Employee was making on the date of
termination, with such adjustments to contributions as are made generally for
all Employers’ employees, and (iv) during such 12-month period, to a monthly
automobile allowance as contemplated by Section 5 below; provided,
however, that Employee shall no longer be entitled to participate in any
of Employers’ 401K plans, excess savings plans, tax qualified profit sharing
plans 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 preceding
sentence in a lump sum payment, with such option to be exercised by Employee in
writing within ten (10) days of termination and Employer shall make such lump
sum payment within thirty (30) days of receiving the written notice from
Employee.  In the event of Employee’s
death during such 12-month period, such continuation of compensation, benefits
and monthly automobile allowance shall cease upon Employee’s death.  In the event Employee obtains employment
elsewhere during such 12-month period such compensation, benefits and monthly
automobile allowance shall continue for the period described above
notwithstanding such reemployment of Employee; provided, however,
that Employers’ obligations for compensation bonus, benefits and monthly
automobile allowance shall be reduced by the amount Employee receives from his
new 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 any
provisions of this Agreement or any claims arising out of Employee’s employment
with Employers, and the commencement of the payment of such sums by Employers
shall not begin until Employee executes and delivers a general release of all
claims in form and substance satisfactory to Employers.


 


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


 


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account.  Employers shall provide Employee with a
monthly car allowance of $500, less
applicable withholdings.  Unless
otherwise expressly provided in this Agreement, Employers’ obligations under
this Section 5 shall terminate upon the termination of the Employment
Period, except for any obligation to reimburse expenses that are incurred prior
to such termination.


 


(f)                                    Assignability Binding Nature.  This Agreement shall be binding and inure to
the benefit of the parties, and their respective successors, heirs (in the case
of Employee) and assigns.  No obligations
of the Employers under this Agreement may be assigned or transferred by the
Employers except that such obligations shall be assigned or transferred (as
described below) pursuant to a merger or consolidation of Holdings in which
Holdings is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Employers, provided that the assignee or
transferee is the surviving entity or successor to all or substantially all of
the assets of the Employers and such assignee or transferee assumes the
liabilities, obligations and duties of the Employers, as contained in this
Agreement, either contractually or as a matter of law.  Each Employer may, without the prior written
consent of Employee, assign its rights and obligations under this Agreement, in
whole or in part, including, without limitation, the rights and obligations set
forth in Section 7 through Section 9, to any one or more of its
affiliates or any entity that acquires a substantial part of its assets or a
successor 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 assumes
and agrees to perform this Agreement by operation of law, or otherwise.


 


(g)                                 Confidential Information.


 


(i)                                     Non-Disclosure. 
During the Employment Period or at any time thereafter, irrespective of
the time, manner or cause of the termination of this Agreement, Employee will
not directly or indirectly reveal, divulge, disclose or communicate to any
person or entity, other than authorized officers, directors and employees of
the Employers, in any manner whatsoever, any Confidential Information (as
hereinafter defined) of Employers or any subsidiary of Employers without the
prior written consent of the Board.


 


(ii)                                  Definition.  As used
herein, “Confidential Information” means information disclosed to or
known by Employee as a direct or indirect consequence of or through the
Employment about Employers or any subsidiary of Employers, or their respective
businesses, products and practices which information is not generally known in
the business in which Employers or any subsidiary of Employers is or may be
engaged.  However, Confidential
Information shall not include under any circumstances any information with
respect to the foregoing matters which is (i) directly available to the public
from a source other than Employee, (ii) released in writing by Employers to the
public or to persons who are not under a similar obligation of confidentiality
to Employers and who are not parties to this Agreement, (iii) obtained by
Employee from a third party not under a similar obligation of confidentiality
to Employers, (iv) required to be disclosed by any court process or any
government or agency or department of any government, or (v) the subject of a
written waiver executed by any of the Employers for the benefit of
Employee.  In the event Employee believes
that 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 at
least 30 days prior to the release or use of such Confidential Information and
shall specify the claimed exemption and the circumstances giving rise thereto.


 


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


 


(h)                                 Agreement Not to Compete.


 


(i)                                     Termination for Cause. 
In the event that Employee is terminated for Cause or voluntarily
terminates his Employment with Employers other than as a Constructive
Termination Without Cause, Employee hereby agrees that for a period of 12
months following such termination, he shall not, either in his own behalf or as
a partner, officer, director, employee, agent or shareholder (other than as the
holder of less than 5% of the outstanding capital stock of any corporation with
a class of equity security registered under Section 12(b) or Section 12(g)
of the Securities Exchange Act of 1934, as amended) engage in, invest in or
render services to any person or entity engaged in the businesses in which
Employers or any subsidiary of Employers are then engaged and situated within
any country.  Nothing contained in this Section 8(a)
shall be construed as restricting the Employee’s right to sell or otherwise
dispose of any business or investments owned or operated by Employee as of the
date hereof.


 


(ii)                                  Termination Without Cause or for Disability; Constructive Termination.  In the event that the Employment of Employee
is terminated by Employers without Cause or the non-renewal of the Employment
Period by Employers or as a result of the total disability of Employee or by
Employee as a Constructive Termination Without Cause, Employee hereby agrees
that during the period that the
Employers are required to make payment to Employee (regardless of whether
Employee accepts such payment, elects to receive a lump sum of such payment,
refuses to execute and deliver a general release as required hereunder or if
such obligation is reduced in any way due to Employee’s employment elsewhere) pursuant
to Section 4(b), Section 4(c) or Section 4(d)
above, as applicable, neither he nor any affiliate shall, either in his own
behalf or as a partner, officer, director, employee, agent or shareholder
(other than as the holder of less than 5% of the outstanding capital stock of
any, corporation with a class of equity security registered under Section 12(b)
or Section 12(g) of the Securities Exchange Act of 1934, as amended)
engage in, invest in or render services to any person or entity engaged in the
businesses in which Employers or any subsidiary of Employers is then engaged
and situated within any country.  Nothing
contained in this Section 8(b) shall be construed as restricting
the Employee’s right to sell or otherwise dispose of any business or
investments owned or operated by Employee as of the date hereof.


 


(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 Employee
or


 


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


 


(j)                                     Injunctive Relief and other Remedies.


 


(i)                                     Employee
acknowledges and agrees that the covenants, obligations and agreements of
Employee contained in Section 7, Section 8, Section 9
and this Section 10 relate to special, unique and extraordinary
matters and that a violation of any of the terms of such covenants, obligations
or agreements will cause Employers irreparable injury for which adequate
remedies are not available at law. 
Therefore, Employee agrees that Employers shall be entitled to an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain Employee from committing any violation of
such covenants, obligations or agreements.


 


(ii)                                  In
the event of Employee’s violation of the provisions of Section 7
after the Employment of Employee is terminated for any reason, Section 8
or Section 9, the right of Employee to receive any further payment
pursuant to this Agreement shall immediately terminate and the payments made to
Employee subsequent to the termination of Employee’s Employment pursuant to
this 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 remedies
described in this Section 10 are cumulative and in addition to any
other rights and remedies Employers may have.


 


(k)                                  No Violation. 
Employee hereby represents and warrants to Employers that the execution,
delivery and performance of this Agreement by Employee does not, with or
without the giving of notice or the passage of time, or both, conflict with,
result in a default, right to accelerate or loss of rights under any provision
of Any agreement or understanding to which the Employee or, to the best
knowledge of Employee, any of Employee’s affiliates are a party or by which
Employee, or to the best knowledge of Employee, Employee’s affiliates may be
bound or affected.


 


(l)                                     Captions.  The
captions, headings and arrangements used in this Agreement are for convenience
only and do not in any way affect, limit or amplify the provisions hereof.


 


(m)                               Notices.  All Notices
required or permitted to be given hereunder shall be in writing and shall be
deemed delivered, whether or not actually received, two days after deposited in
the United States mail, postage prepaid, registered or certified mail, return
receipt requested, addressed to the party to whom notice is being given at the
specified address or at such other address as such party may designate by
notice:


 


Employers:                                     Thermadyne
Holdings Corporation

Attn: Chief Executive Officer


16052
Swingley Ridge Road, Suite 300

St.  Louis, MO 63017

Fax: 636.728.3010


 


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and


 


Thermadyne Holdings Corporation

Attn: Vice President and General Counsel 

16052 Swingley Ridge Road, Suite 300

St.  Louis, MO 63017 

Fax: 636.728.3011


 


Employee:                                         16052
Swingley Ridge Road, Suite 300


St.  Louis, MO 63017


 


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


 


(o)                                 Amendments.  This
Agreement may be amended in whole or in part only by an instrument in writing
setting forth the particulars of such amendment and duly executed by an officer
of Employers and by Employee.


 


(p)                                 Waiver.  Except as
otherwise provided herein, no delay or omission by any party hereto to exercise
any right or power hereunder shall impair such right or power or be construed
as a waiver thereof.  A waiver by any of
the parties hereto of any of the covenants to be performed by any other party
or any breach thereof shall not be construed to be a waiver of any succeeding
breach thereof or of any other covenant herein contained.  Except as otherwise expressly set forth
herein, all remedies provided for in this Agreement shall be cumulative and in
addition to and not in lieu of any other remedies available to any party at
law, in equity or otherwise.


 


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


 


(r)                                    Governing Law.  This
Agreement shall be construed and enforced according to the laws of the State of
Missouri.


 


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


 


(t)                                    Payment Upon Death of Employee.  In the event of the death of Employee during
the term hereof, any unpaid payments due either prior to Employee’s death or
after Employee’s death shall be payable as designated by Employee prior to his
death in writing to Employers.  In the
event of the death of all such persons so designated by Employee, either prior
to the death of the Employee or during any time when payments are due as
provided herein, or in the event Employee fails to so designate prior to his
death, or withdraws all such designations, said payments thereafter shall be
made to Employee’s estate.


 


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


 


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


 


(w)                               Employee Acknowledgements.  Employee acknowledges and agrees that (a) he
has read this Agreement; (b) he is fully competent to execute this Agreement
which he understands to be contractual; (c) he executes this Agreement of his
own free will, after having a reasonable period of time to review, study, and
deliberate regarding its meaning and effect and to consult with counsel regarding
same; and (d) without reliance on any representation of any kind or character
not expressly set forth herein.


 


* * * * * *


 


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IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Amended and Restated Executive Employment Agreement as of
the 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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