EX-10.2






Exhibit 10.2




THIRD AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT




     THIS THIRD AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this “AGREEMENT”) is made and
entered into as of August 17, 2009 (the “EFFECTIVE DATE”) by and among Thermadyne Holdings
Corporation, a Delaware corporation (“HOLDINGS”), the subsidiaries of Holdings (together with
Holdings, “EMPLOYER”), and Terry Downes (“EMPLOYEE”).



RECITALS




     A. Holdings and Employee entered into a Second Amended and Restated Executive Employment
Agreement, dated January 1, 2004 and amended on December 31, 2008, pursuant to which Holdings
agreed to employ Employee as Vice President — Global Corporate Development and Employee agreed to
be employed by Holdings in such capacity (the “ORIGINAL AGREEMENT”).



     B. The parties wish to amend and restate the Original Agreement on the terms and conditions
set forth in this Agreement.



     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, Employer and Employee do
hereby covenant and agree as follows:



SECTION 1. BASIC EMPLOYMENT PROVISIONS.




     (a) EMPLOYMENT AND TERM. Employer hereby employs Employee (hereinafter referred to as the
“EMPLOYMENT”) as Executive Vice President — Chief Operating Officer of Employer and Employee agrees
to be employed by Employer in such capacity, all on the terms and conditions set forth herein. The
Employment shall be for a period that will (i) commence on the Effective Date and continue for one
(1) year thereafter (unless the Employment is earlier terminated as provided herein) (the “INITIAL
EMPLOYMENT PERIOD”) and (ii) renew on the first anniversary of the Effective Date and each
anniversary thereafter for a one-year period (any such additional period, a “RENEWAL PERIOD”), on
the same terms and conditions contained herein (unless earlier terminated as provided herein or
either party provides the other party written notice not less than ninety (90) days in advance of
the applicable anniversary of the Effective Date in order to avoid renewal of the Employment on
such anniversary. The Initial Employment Period and any Renewal Periods, if any, together shall
constitute the “EMPLOYMENT PERIOD” for purposes of this Agreement. For the purposes of this
Agreement, Holdings’ subsidiaries, as the case may be, shall be the “Employer” only for tax, legal
reporting, payroll processing and similar purposes.



     (b) DUTIES. As Executive Vice President — Chief Operating Officer, Employee shall report
directly to the President of Employer (the “PRESIDENT”) and shall perform such duties as are
customary for such position as the President may from time to time reasonably direct. Employee
shall devote all of his full business time and attention to the business and affairs of Employer as
is reasonably necessary to discharge his responsibilities hereunder. Employee agrees to perform
faithfully the duties assigned to him to the best of his ability and shall comply with the



 









 







employment policies of Employer. In the performance of his duties hereunder, Employee shall
at all times report and be subject to the lawful direction of the President and perform his duties
hereunder subject to and in accordance with the directives of the President and the by-laws of
Employer and applicable law. During the Employment Period, Employee shall not become an employee
of any person or entity other than Employer. This Section 1(b) shall not be construed to prohibit
Employee from serving on the board of directors of one or more other entities (with the prior
consent of the Board of Directors of Employer (the “BOARD”).



SECTION 2. COMPENSATION.




     (a) SALARY. Employer shall pay to Employee during the Employment Period a salary as basic
compensation for the services to be rendered by Employee hereunder (“BASIC COMPENSATION”). The
Basic Compensation shall be $340,000 per annum. Such salary shall accrue and be payable in
accordance with Employer’s payroll practices in effect from time to time.



     (b) ANNUAL INCENTIVE COMPENSATION. During the Employment Period, Employee shall be eligible
for an annual incentive bonus opportunity at a target of 50% of Employee’s Basic Compensation as in
effect on January 1 of such year (up to a maximum opportunity of 100% of Basic Compensation). The
actual amount of any such bonus shall be determined by and in accordance with the terms of
Employer’s Annual Incentive Plan as in effect from time to time.



     (c) BONUS AWARD. Employee shall receive a bonus award with a grant value of $75,000,
consisting of (i) performance-based restricted stock in the amount of $37,500 (valued based on the
closing price of Employer’s stock on the Effective Date) pursuant to the terms of Employer’s
Amended and Restated 2004 Stock Incentive Plan (the “2004 PLAN”) and (ii) performance cash in the
amount of $37,500. Additionally, such award shall (a) be subject to, and shall vest upon the
achievement of, the performance criteria established by the Compensation Committee of the Board
over a measurement period beginning January 1, 2010 and ending December 31, 2012 and (b) vest, if
it vests at all, upon the approval by the Board of the audited financial statements for Employer
and its subsidiaries for the fiscal year ended December 31, 2012.



     (d) LONG TERM INCENTIVE AWARDS. During the Employment Period, Employee shall be entitled to
receive annual long-term incentive awards on terms consistent with Employee’s position and other
similarly situated executives of Employer.



     (e) PARTICIPATION IN BENEFIT PLANS. During the Employment Period, Employee shall be entitled
to participate in such employee benefit plans, programs and arrangements made generally available
to, and on the same terms as, full-time executive employees of Employer, including, without
limitation, four (4) weeks paid vacation annually, 401(k) plans, excess savings plans, tax
qualified profit sharing plans and any other retirement plans, health, group life (with optional
additional coverage), short term disability, long term disability (not to exceed sixty-percent
(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 Employer
for its full-time employees. Nothing herein shall affect Employer’s right to amend, modify or
terminate any retirement or other benefit plan at any time on a company-wide basis for similarly
situated employees.



2









 





     (f) CAR ALLOWANCE. During the Employment Period, Employee shall be entitled to receive an
annual car allowance of $500 per month (the “CAR ALLOWANCE”), which shall be administered in
accordance with Employer’s then-current policy for similarly situated executives. The right to
receive a Car Allowance shall cease upon the termination or expiration of the Employment Period for
any reason whatsoever.



     (g) OUTSTANDING LONG-TERM INCENTIVE AWARDS. Employee’s outstanding stock option awards to
purchase shares of Employer’s stock (the “OPTIONS”) and restricted stock awards and other awards
granted to Employee by Employer under the 2004 Plan or any successor plan thereto shall, both
during and upon the termination or expiration of the Employment Period, operate in accordance with
the terms of Employee’s applicable award agreement(s), including, without limitation, with respect
to vesting and exercisability rights. Notwithstanding the foregoing, in the event Employee
violates any of the provisions of Section 7 through Section 11 following the termination or
expiration of his Employment, Employee shall immediately forfeit all options and similar awards
which may have been exercisable following termination or expiration of employment with Employer.



     (h) WITHHOLDING TAXES. The compensation and benefits to be provided to Employee pursuant to
this Agreement shall all be subject to withholding and deductions for applicable federal, state and
local taxes and other items, if any, authorized or required by law to be withheld.



SECTION 3. TERMINATION.




     (a) DEATH OR DISABILITY. Employment of Employee under this Agreement shall terminate
automatically upon the death or total disability of Employee. For the purpose of this Agreement, a
“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 six (6)
consecutive months.



     (b) CAUSE. The Board 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 Employer’s expense; (iii) the willful engaging by Employee in
misconduct which is injurious to Employer; (iv) Employee’s failure to comply with the material
terms of this Agreement, which is not remedied by Employee within thirty (30) days after receipt of
written notice thereof given by Employer; (v) failure by Employee to comply fully with any lawful
directives of the Board or Employer, which is not remedied by Employee within thirty (30) days
after receipt of written notice thereof given by Employer or the Board; (vi) misappropriation by
Employee of Employer’s funds; (vii) habitual abuse of alcohol, narcotics or other controlled
substances by Employee; (viii) gross negligence in the performance of Employee’s duties and
responsibilities hereunder; or (ix) 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.



     (c) WITHOUT CAUSE. Employer may terminate the Employment of Employee under this Agreement
without Cause.



3









 





     (d) CONSTRUCTIVE TERMINATION. Employee may elect to terminate his Employment under this
Agreement upon a Constructive Termination Without Cause (as defined below) by providing Employer
written notice within thirty (30) days of Employee becoming aware of such Constructive Termination
Without Cause. Failure to provide such notice within thirty (30) days shall constitute a waiver of
Employee’s rights under this Section 3(d). For purposes of this Agreement, “CONSTRUCTIVE
TERMINATION WITHOUT CAUSE” shall mean a termination of Employee’s employment at his initiative
following the occurrence, without Employee’s prior written consent, of one or more of the following
events:



          (1) any failure by Employer to comply with any of the material provisions of this Agreement
which is not remedied by Employer within thirty (30) days after receipt of written notice thereof
given by Employee;




          (2) without Employee’s consent, any reduction in Basic Compensation, bonus percentage, or
material reduction in duties, unless a similar reduction in basic compensation or bonus percentage
is made with respect to similarly situated executives of Employer;




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




          (4) any failure by Employer 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 Employer to assume
expressly and agree to perform this Agreement in the same manner and to the same extent Employer
would be required to perform it if no such succession had taken place; provided that the successor
contemplated by Section 6 hereof has received, at least ten (10) days prior to the giving of notice
of constructive termination by Employee, written notice from Employer or Employee of the
requirements of the provisions of Section 6 or of such failure.




     (e) FAILURE TO MAINTAIN RESIDENCE. Employee shall be required to maintain his primary
personal residence within fifty (50) miles of the location of Employer’s corporate headquarters
during the Employment Period. If Employee fails to maintain such required residence, unless the
location of his residence is otherwise approved by the Board, (i) Employee shall be deemed to have
voluntarily resigned his Employment, whereupon Employee’s Employment shall automatically terminate
and (ii) Employee’s rights to compensation, benefits or other payments following such termination
of Employment shall be strictly limited to those provided in Section 4(b) below.



SECTION 4. COMPENSATION FOLLOWING TERMINATION OR EXPIRATION.




     (a) DEATH OR DISABILITY. If the Employment Period is terminated pursuant to Section 3(a)
above due to the death or Total Disability 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 or 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 pay period in
which Employee’s death or Total Disability 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 or
Total Disability and denominator of which is 365) of the bonus set forth in Section 2(b)



4









 







which Employee would have been entitled to receive for the year in which termination occurs if
the performance objectives established in Employer’s Annual Incentive Plan are achieved, (iii) any
unreimbursed expenses pursuant to Section 5 below, and (iv) in the event of termination due to
Total Disability, during the two (2) year period following such date of termination, medical and
dental insurance coverage and benefits to which Employee would otherwise be entitled during the
Employment Period pursuant to Section 2(e) 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 such contributions as are made generally for all Employer’s full-time executive
employees. Thereafter Employer shall have no further obligations or liabilities hereunder to
Employee or Employee’s estate or legal representative or otherwise, as the case may be.



     (b) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. If the Employment Period is terminated
for Cause or voluntarily by Employee for reasons other than those described in Sections 3(a) or
3(d) above, this Agreement shall terminate and 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.



     (c) TERMINATION WITHOUT CAUSE; CONSTRUCTIVE TERMINATION. If the Employment Period is
terminated pursuant to Sections 3(c) or 3(d) above, this Agreement shall terminate and Employee
shall be entitled (i) to continue to receive from Employer his then current Basic Compensation,
such amount to continue to be paid in accordance with Employer’s payroll practices until the first
anniversary of the date of termination, (ii) to receive a pro rata portion (based on a fraction the
numerator of which is the number of days Employee worked in the year of termination and denominator
of which is 365) of the bonus 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
Employer’s Annual Incentive Plan are achieved, and (iii) until the first anniversary of the date of
termination, to continue to receive the benefits to which he would otherwise be entitled during the
Employment Period pursuant to Section 2(e) 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 Employer’s full-time executive
employees; further provided that in such event Employee shall no longer be entitled to participate
in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any
other retirement plans. In the event of Employee’s death during the period in which he is entitled
to the compensation and benefits described in this Section 4(c), such continuation of compensation
and benefits shall immediately cease upon Employee’s death. In the event Employee obtains
employment elsewhere during the period in which he is entitled to the compensation and benefits
described in this Section 4(c), such compensation and benefits shall continue for the period
described above notwithstanding such reemployment of Employee; provided, however, that Employer’s
obligations for such compensation and benefits shall be reduced by the amount Employee receives
from his new employer for compensation and benefits. The sums received by Employee under this
Section 4(c) 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 Employer, and the
commencement of the payment of such sums by Employer shall not begin until Employee executes and
delivers a general release of all claims in form and substance satisfactory to Employer.



5









 





     (d) NON-RENEWAL OF THE AGREEMENT. If the Employment Period expires as a result of non-renewal
pursuant to Section 1(a) above, this Agreement shall terminate and Employee shall be entitled (i)
to continue to receive from Employer his then current Basic Compensation, such amount to continue
to be paid in accordance with Employer’s payroll practices for a period of nine (9) months
following the date of expiration, and (ii) for a period of nine (9) months following the date of
expiration, to continue to receive the benefits to which he would otherwise be entitled during the
Employment Period pursuant to Section 2(e) above; provided that Employee shall continue to make the
same contributions toward such coverage as Employee was making on the date of expiration, with such
adjustments to contributions as are made generally for all Employer’s full-time executive
employees; further provided that in such event Employee shall no longer be entitled to participate
in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any
other retirement plans.



     (e) PAYMENTS. In no event shall any payment to Employee under this Agreement that constitutes
a “parachute payment” within the meaning of Section 280G(b)(2) of the Internal Revenue Code of
1986, as amended (the “CODE”), exceed 299% of Employee’s “base amount” of compensation, as defined
in Section 280G of the Code. If any such “parachute payment” would exceed 299% of such “base
amount,” Employer will instead pay Employee 299% of the “base amount” and Employer shall have no
further obligation to Employee hereunder.



     (f) SECTION 409A COMPLIANCE




	 	(1)	 	Notwithstanding any term or condition in this Agreement to the contrary:

	 
	 	 	 	If Employee is a “specified employee” (within the meaning of Section
409(a)(2)(B)(i) of the Code at the time of his termination of employment
with Employer and is entitled to payments under this Agreement which are on
account of “involuntary separation of service” within the meaning of
Treasury Regulation Section 1.409A-1(n), amounts payable to Employee,
notwithstanding anything in this Agreement to the contrary, during the first
six (6) consecutive months immediately following the month in which such
termination of employment occurs shall be suspended after the total of such
payments equal the lesser of the amount specified under Treasury Regulation
1.409A-1(a)(9)(iii)(A)(l) or (2). If Employee is such a “specified
employee” at the time of his termination of employment with Employer and is
entitled to payments under this Agreement which are not on account of such
“involuntary separation of service”, amounts payable to Employee,
notwithstanding anything in this Agreement to the contrary, during the first
six (6) consecutive months immediately following the month in which such
termination of employment occurs shall be suspended. To the extent such
payments payable during such six (6) month period are suspended as provided
herein, such amounts shall be paid in a single sum as of the first regular
payroll date of the applicable entity of Employer, immediately following the
last day of the sixth consecutive month immediately following the month in
which such termination of employment occurs, along with interest on such
suspended amounts at the rate of twelve percent (12%) per annum from the
date such amounts would have otherwise been paid but to






6









 







the date they are paid. Payments otherwise payable after such six (6) month
period shall be made as otherwise provided in this Agreement.



          (2) Notwithstanding any inconsistent provision in this Agreement, Employee’s expense account
reports must be submitted no later than January 31 immediately following the calendar year in which
his termination of employment with Employer occurs and such reimbursements must be paid no later
than March 15 immediately following the calendar year in which such termination of employment
occurs.




          (3) To the extent that an election is required under Section 409(a) of the Code and applicable
regulations to avoid penalties or excise taxes, Employee hereby elects payment in a lump sum, in
accordance with the applicable law and/or regulations.




SECTION 5. EXPENSE REIMBURSEMENT.




     Upon the submission of properly documented expense account reports, Employer shall reimburse
Employee for all reasonable business-related travel and entertainment expenses incurred by Employee
in the course of his Employment with Employer, including the ownership and use of a cellular phone.
Unless otherwise expressly provided in this Agreement, Employer’s obligations under this Section 5
shall terminate upon the termination or expiration of the Employment Period, except for any
expenses eligible for reimbursement hereunder that are incurred prior to such termination or
expiration, in which case such expenses shall be reimbursed if and as incurred before the
termination or expiration date of the Employment Period.



SECTION 6. ASSIGNABILITY; BINDING NATURE.




     This Agreement shall be binding upon and inure to the benefit of the parties, and their
respective successors, heirs (in the case of Employee) and assigns. No obligations of Employer
under this Agreement may be assigned or transferred by Employer except that such obligations shall
be assigned or transferred (as described below) pursuant to a merger or consolidation of Employer
in which Employer is not the continuing entity, or the sale or liquidation of all or substantially
all of the assets of Employer, provided that the assignee or transferee is the surviving entity or
successor to all or substantially all of the assets of Employer and such assignee or transferee
assumes the liabilities, obligations and duties of Employer, as contained in this Agreement, either
contractually or as a matter of law. 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 11, 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, “Employer”
shall mean Employer as hereinbefore defined, and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.



SECTION 7. CONFIDENTIAL INFORMATION.




     (a) NON-DISCLOSURE. During the Employment Period or at any time thereafter, irrespective of
the time, manner or cause of the termination or expiration 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 Employer, in any manner



7









 







whatsoever, any Confidential Information (as hereinafter defined) of Employer or any
subsidiary of Employer without the prior written consent of the Board.



     (b) DEFINITION. As used herein, “CONFIDENTIAL INFORMATION” means information disclosed to or
known by Employee as a direct or indirect consequence of or through Employee’s employment by
Employer about Employer or any subsidiary of Employer, or their respective businesses, products and
practices which information is not generally known in the business in which Employer or any
subsidiary of Employer 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 Employer to
the public or to persons who are not under a similar obligation of confidentiality to Employer and
who are not parties to this Agreement, (iii) obtained by Employee from a third party not under a
similar obligation of confidentiality to Employer or any of its subsidiaries, (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 Employer for the benefit of Employee. In the event
Employee believes that he is free to disclose or utilize Confidential Information under this
Section 7(b), he shall give written notice of the same to Employer at least thirty (30) days prior
to the release or use of such Confidential Information and shall specify the claimed exemption and
the circumstances giving rise thereto.



     (c) RETURN OF PROPERTY. Upon any termination or expiration of the Employment Period, Employee
will surrender to Employer all Confidential Information, including, without limitation, all lists,
charts, schedules, reports, financial statements, books and records of Employer or any subsidiary
of Employer, and all copies thereof, and all other property belonging to Employer or any subsidiary
of Employer, 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 Employer.



SECTION 8. AGREEMENT NOT TO COMPETE.




     In the event that the Employment Period expires or is terminated for Cause or as a result of
voluntary termination by Employee (other than a Constructive Termination Without Cause), then
Employee hereby agrees that for a period of one (1) year following such expiration or 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(h) 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 Employer or any subsidiary of Employer are then
engaged and situated within any country. Nothing contained in this Section 8 shall be construed as
restricting Employee’s right to sell or otherwise dispose of any business or investments owned or
operated by Employee as of the date hereof.



SECTION 9. AGREEMENT NOT TO SOLICIT EMPLOYEES OR CUSTOMERS.




     Employee agrees that, for a period of two (2) years following the termination or expiration of
Employment for any reason whatsoever, neither he nor any affiliate shall, on behalf of any business
engaged in a business competitive with Employer or any subsidiary of Employer, solicit or



8









 







induce, or in any manner attempt to solicit or induce (i) any customer which was a customer of
Employer or of any subsidiary of Employer at any time during the course of Employee’s employment by
Employer or any subsidiary of Employer or any active prospective customer of Employer or any
subsidiary of Employer or cause or attempt to cause such a customer or active potential customer to
divert, terminate, limit, modify or fail to enter into any existing or potential relationship with
Employer or any subsidiary of Employer or (ii) any person employed by, or any agent of, Employer or
any subsidiary of Employer, to terminate his or her employment or agency, as the case may be, with
Employer 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
with the prior knowledge of Employee) or any affiliate of Employee, on a “blind basis” such as
through a head hunter.



SECTION 10. INVENTIONS.




     Any and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part
patent applications, divisional patent applications, technology, copyrights, derivative works,
trademarks, service marks, improvements, trade secrets and the like (collectively, “INVENTIONS”),
which are developed, conceived, created, discovered, learned, produced and/or otherwise generated
by Employee, whether individually or otherwise, during the time that Employee is employed by
Employer, whether or not during working hours, that relate to (i) current and anticipated
businesses and/or activities of Employer or any subsidiary of Employer, (ii) Employer’s or any of
its subsidiaries’ current and anticipated research or development, or (iii) any work performed by
Employee for Employer or any subsidiary of Employer, shall be the sole and exclusive property of
Employer, and Employer shall own any and all right, title and interest to such Inventions.
Employee assigns, and agrees to assign to Employer whenever so requested by Employer, any and all
right, title and interest in and to any such Inventions, at Employer’s expense, and Employee agrees
to execute any and all applications, assignments or other instruments which Employer deems
desirable or necessary to protect such interests.



SECTION 11. NON-DISPARAGEMENT.




     Each party agrees that it will not, at any time, including without limitation after
termination or expiration of the Employment Period for any reason whatsoever, in any way disparage
the other party (including, with respect to Employer, any subsidiary of Employer or Employers’ or
any of its subsidiaries’ past, present and future officers, directors, employees, or agents), or
make or solicit any comments, statements, or the like to the media or to the public in general that
may be considered to be reasonably derogatory or detrimental to the good name or business
reputation of any of such persons. Any such disparagement shall be considered a material breach of
this Agreement.



SECTION 12. INJUNCTIVE RELIEF AND OTHER REMEDIES.




     (a) Employee acknowledges and agrees that the covenants, obligations and agreements of
Employee contained in Section 7 through this Section 12 relate to special, unique and extraordinary
matters and that a violation of any of the terms of such covenants, obligations or agreements will
cause Employer irreparable injury for which adequate remedies are not available at law. Therefore,
Employee agrees that Employer shall be entitled to an injunction, restraining order or such other
equitable relief (without the requirement to post bond) as a court of competent



9









 







jurisdiction may deem necessary or appropriate to restrain Employee from committing any
violation of such covenants, obligations or agreements.



     (b) In the event of Employee’s violation of any of the provisions of Section 7 through Section
11 after the Employment of Employee is terminated or expires for any reason whatsoever, 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 or expiration of Employee’s
Employment pursuant to this Agreement shall be returned to Employer by Employee within thirty (30)
days after receipt of written notice from Employer of such violation.



     (c) In the event of any Clawback Event (as defined below), Employer shall have the right to
require Employee to pay to Employer all or any portion of the Clawback Amount (as defined below)
within thirty (30) days following written notice by Employer to Employee that it is exercising such
right. The “CLAWBACK AMOUNT” shall mean an amount equal to (i) the gross option gain realized or
obtained by Employee or any transferee resulting from the exercise of any stock options granted to
Employee by Employer and (ii) the gross gain realized or obtained by Employee resulting from the
vesting of any shares of restricted stock granted to Employee by Employer, measured at the date of
vesting, in each case within three years before a Clawback Event, whenever such options are
exercised or shares of restricted stock vest. A “CLAWBACK EVENT” shall occur if Employer is
required to prepare an accounting restatement due to material noncompliance of Employer with any
financial reporting requirement under the United States securities laws, if any action or failure
to act of Employee materially caused or materially contributed to such noncompliance.



     (d) The injunctive remedies and other remedies described in this Section 12 are cumulative and
in addition to any other rights and remedies Employer may have.



SECTION 13. NO VIOLATION.




     Employee hereby represents and warrants to Employer 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.



SECTION 14. 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.



SECTION 15. 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 (2) 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:



10









 





	 	 	 
	     Employer:

	 	Thermadyne Holdings Corporation
	 

	 	Attn: Chairman of the Board; Lead Director of the Board; and
	 

	 	Chairman of the Compensation Committee of the Board
	 

	 	16052 Swingley Ridge Road, Suite 300
	 

	 	St. Louis, MO 63017
	 

	 	Fax: 636-728-3010
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Thermadyne Holdings Corporation
	 

	 	Attn: General Counsel
	 

	 	16052 Swingley Ridge Road, Suite 300 
	 

	 	St. Louis, MO 63017
	 

	 	Fax: 636-728-3011
	 
	 	 
	     Employee:

	 	Thermadyne Holdings Corporation
	 

	 	16052 Swingley Ridge Road, Suite 300 
	 

	 	St. Louis, MO 63017






SECTION 16. 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 from 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.



SECTION 17. 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 a duly authorized officer of Employer
and by Employee.



SECTION 18. WAIVER.




     No delay or omission by any party hereto to exercise any right or power hereunder shall impair
such right or power to be construed as a waiver thereof. A waiver by any of the parties hereto of
any of the covenants to be performed by the 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.



11









 





SECTION 19. 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 maybe 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.



SECTION 20. GOVERNING LAW.




     This Agreement shall be construed and enforced according to the laws of the State of Missouri,
without regard for any conflict of law principles.



SECTION 21. RESOLUTION OF DISPUTES; ARBITRATION.




     Any dispute arising out of or relating to this Agreement or Employee’s employment with
Employer or the termination or expiration thereof shall be resolved first by negotiation between
the parties. If such negotiations leave the matter unresolved after 60 (sixty) 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 shall 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 may be entered in any court having jurisdiction thereof.
The parties shall be responsible for their own costs and expenses under this Section 21.



SECTION 22. PAYMENT UPON DEATH OF EMPLOYEE.




     In the event of the death of Employee, any unpaid payments due either prior to Employee’s
death or after Employee’s death in accordance with the terms of this Agreement shall be payable as
designated by Employee prior to his death in writing to Employer. 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.



SECTION 23. PRIOR AGREEMENTS.




     This Agreement supersedes any and all other employment or similar agreements between Employee
and Employer, including, without limitation, the Original Agreement.



SECTION 24. 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)
executes this Agreement without reliance on any representation of any kind or character not
expressly set forth herein.



12









 





THIS AGREEMENT CONTAINS BINDING ARBITRATION PROVISIONS THAT

MAY BE ENFORCED BY THE PARTIES




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



	 	 	 	 	 
	 	EMPLOYEE:
 
	 
	 	/s/ Terry Downes 
	 
	 	Terry Downes
	 
	 
	 	EMPLOYER:


THERMADYNE HOLDINGS CORPORATION

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	Executive Vice President,

Chief Financial Officer,
and Chief Administrative Officer 	 
	 




13