Attached files
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8-K - FORM 8-K - Victor Technologies Group, Inc. | c97820e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - Victor Technologies Group, Inc. | c97820exv3w1.htm |
Exhibit 10.1
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release is made and effective as of the 12th day of March, 2010
by and between John Boisvert (hereinafter Executive), and Thermadyne Holdings Corporation
(Holdings) and each of its subsidiaries, divisions, and affiliates (together with Holdings all
collectively referred to as Employers or Releasees). This Severance Agreement and Release
(Release) is entered into pursuant to the terms of the Second Amended and Restated Executive
Employment Agreement (Agreement) entered into as of January 1, 2004, as amended by the Amendment
Regarding IRC §409A to Executive Employment Agreement. The terms of this Release are as
follows:
1. Pursuant to the Employers Non-Renewal Notice, Executives employment with
Employers will terminate effective the 12th day of March, 2010 (the Effective Date), thereby
terminating as of that date all further obligations of Employers, of whatever kind and nature,
except such compensation and benefits as are expressly provided for in this Release. In the event
that Executive obtains employment elsewhere during the twelve (12) month period following
termination, Holdings obligations for compensation or benefits shall be reduced by the amounts
Executive receives from his new employer as compensation or benefits.
(a) Holdings agrees to continue Executives Basic Compensation for a twelve (12) month
period ending on March 12, 2011, payable in accordance with Employers normal payroll
practices. For purposes of enhancing this severance benefit, Holdings will use Executives
base salary as of January 1, 2009 for purposes of computing his Basic Compensation.
Holdings will also pay to Executive an additional lump sum payment of Fourteen Thousand
Dollars ($14,000) within thirty (30) days of Executives execution
and delivery to Holdings of this Release. Both parties recognize that deductions from
these payments, as required by law, will be made.
(b) Except as otherwise provided herein, Holdings also agrees that for the same twelve
(12) month period it will continue to provide to Executive the benefits provided to him
immediately prior to the date of termination of employment, including the payment of
Employers portion of the premiums, if any, for said benefits, provided that Executive
timely elects continuation pursuant to the Consolidated Omnibus Budget Reconciliation Act
required for such benefits to continue after termination of employment. The continuation of
Executives participation in health insurance coverage and receipt of any other benefits for
which Executive has been required to make contribution during his employment with Employers
shall be further conditioned on Executive continuing to make the same contributions toward
such coverage and other benefits as Executive was making on the date of termination, with
such adjustments to contributions as are made generally for Employers active employees.
Notwithstanding the foregoing, after March 12, 2010, Executive will not be entitled to
participate in any 401K plans, excess savings plans, tax qualified profit sharing plans or
any other retirement plans.
(c) Executive shall have the option to receive the present value of said Basic
Compensation and benefits (at a 12% discount) in a lump sum payment, if Executive exercises
this option by giving written notice within ten (10) days after the Effective Date. In that
event, Holdings shall make such lump sum payment within thirty (30) days of receiving the
written notice from Executive.
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(d) Executive hereby acknowledges and agrees that Holdings has previously reimbursed
him for, or paid directly on his behalf, educational expenses incurred for classes in which
Executive was enrolled on or prior to the Effective Date, and that, as of such date,
Holdings has no further obligations to reimburse Executive or pay for any educational
expenses on his behalf.
(e) Notwithstanding the broad nature of this Release and except as provided in this
Paragraph 1(e), the terms of any award agreements providing for the grant of any stock
option and restricted stock awards entered into by Executive, and the plan(s) pursuant to
which such awards may have been granted, shall remain in full force and effect and are
reaffirmed herein, and nothing in this Release shall be considered a waiver or release by
Executive of any vested rights to such awards. Subject to obtaining the required
approval(s) of the Compensation Committee of the Board of Directors of Holdings, Holdings
hereby agrees to amend the stock options granted to Executive on June 13, 2004 (25,000
shares with an exercise price of $13.10 per share), March 31, 2006 (5,000 shares with an
exercise price of $15.75 per share) and March 10, 2009 (1,353 shares with an exercise price
of $4.98 per share), which are vested as of the Effective Date, by extending the period
during which Executive may exercise such options to one hundred eighty (180) days after the
date of termination of Executives employment.
2. This Release constitutes full and final settlement of all claims asserted or which could
have been asserted prior to the date of the Release. By the execution of the terms hereof,
Releasees are released from all claims for liability asserted or which could have been asserted,
known or unknown, suspected or not suspected.
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3. The Release under Paragraph 2 above includes any and all claims, demands and causes of
action of any kind whatever, including attorneys fees and costs actually incurred (collectively
referred to as Claims), whether known or unknown, which Executive now has or ever has had against
any of the Releasees up to the Effective Date, including but not limited to claims under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., Equal Pay Act, 29 U.S.C. §206 et
seq., the Employee Retirement Income Security Act, 29 U.S.C. §§1001 et
seq., Title VII, 42 U.S.C. §§2000 et seq., R.S.Mo. Chapter 213, et
seq., 42 U.S.C. §1981, the Americans With Disabilities Act, 42 U.S.C. §§12,101 et.
seq., and any and all other federal, state or local statues and/or ordinances, and any and
all other Claims arising under or pursuant to contract or common law
4. Executive agrees that he will not disparage Releasees (including its current or former
officers, directors, agents, representatives and/or employees) or solicit or encourage others to do
so. Holdings agrees that its officers, directors and employees of its Human Resources department
will not disparage Executive or solicit or encourage others to do so. Notwithstanding the
foregoing, nothing in this Paragraph shall preclude any person from providing truthful testimony or
information as required by law.
5. Executive agrees and represents that it is within his contemplation that he may have Claims
against Releasees of which, at the time of the execution of this Release, he has no knowledge or
suspicion, but he agrees and represents that this Release extends to all Claims in any way based
upon, connected with or related to the matters described in Paragraph 2 and 3, above, whether or
not known, claimed or suspected by him.
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6. Releasees deny, and consideration given for this Release does not constitute an admission
of, any allegation of a violation of any applicable law, statute, rule, regulation or
contract made against them by Executive. This Release shall not be deemed an admission of
liability or of a violation of any applicable law, statute, rule, regulation or contract of any
kind.
7. This Release shall be binding upon Executive and his heirs, executors, administrators,
assigns, successors, beneficiaries and agents, and shall inure to the benefit of Releasees and
their successors and assigns.
8. Executive further agrees that from this day forward the amount of the settlement made
herein will not be disclosed by him directly or indirectly, to any other persons, except to his
immediate family, attorney, and accountant, or as required by law. Holdings further agrees that
from this day forward the amount of the settlement made herein will not be disclosed by its
officers, directors or Human Resources department, directly or indirectly, to any other persons,
except to its attorney, affiliated corporate entities, necessary internal personnel, and
accountants, or as required by law. Violation of this provision will entitle the offended party to
the right to recover monetary damages suffered as a result of such violation and to obtain and
enforce injunctive relief prohibiting violation of the confidentiality of this Release.
9. Executive expressly acknowledges and agrees that the waiver of Claims in this Release is
knowing and voluntary, that the Release has been written in a manner calculated to be, and which
is, understood by Executive that Executive is not waiving rights for claims first arising under the
Age Discrimination in Employment Act after the date this Release is signed. Executive further
agrees that: (1) he has read and understands this Release; (2) he understands that Executive has
had a period at least twenty-one (21) days within which to consider it; (3) he is hereby advised to
consult with an attorney regarding this Release, its meaning, effect and application; and (4)
benefits specified in this Release are not benefits to which Executive is presently entitled. Both
parties agree that any modifications or edits to this Release will not
restart the 21-day statutory consideration period. Executive further understands that
Executive may revoke this Release for a period of seven (7) days after the date of execution of
this Release, after which this Release shall become effective, binding and enforceable.
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10. This Release is a complete and total integration of the understanding of the parties and
supersedes all prior or contemporaneous negotiations, commitments, agreements, writings and
discussions. Executive represents and warrants that no promise or inducement has been offered or
made except as set forth herein and that this Agreement is executed without any reliance upon any
other statement or representation by any of the Releasees. Notwithstanding this Paragraph 10, the
terms of Sections 7, 8, 9, 10, 18 and 19 of the Agreement, as well as the Amendment Regarding IRC
§409A to Executive Employment Agreement, shall remain in full force and effect and are reaffirmed
herein. Notwithstanding the nature of the termination of the Executives employment with the
Employers, the post-employment limitations imposed by Sections 8(b) and 9 of the Agreement
pertaining to Executives agreements not to compete and not to solicit employees are hereby
restated and deemed fully enforceable as if fully stated herein. For purpose of interpreting
Section 9 of the Agreement, the parties agree that Executives agreement not to solicit employees
will apply to all current employees of any Employer as well as all former employees or consultants
of any Employer who are themselves party to an employment or consulting agreement with any Employer
that contains any confidentiality, non-compete, non-solicitation, work-for-hire, invention and
improvement ownership, and other similar provisions.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Severance Agreement
and Release as of the 12th day of March, 2010.
/s/ John Boisvert | ||||
John Boisvert | ||||
THERMADYNE HOLDINGS CORPORATION |
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/s/ Martin Quinn | ||||
By: | Martin Quinn | |||
Title: | President | |||
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