Exhibit 10.38
February 1, 2006
Xxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Dear Xxxx:
C&D Technologies, Inc., a Delaware corporation (the "Company"),
wishes to continue to employ you in an executive capacity and the Company
desires to encourage such employment by providing certain protections for you by
entering into this Agreement with you, in return for which you agree to be
employed by the Company on the terms set forth herein, to refrain from certain
competitive activity and to provide the Company with certain assurances upon
your departure. In consideration of same, the Company agrees to employ you, and
you agree to accept such employment, under the following terms and conditions:
1. Term of Employment. Your employment under this Agreement shall
continue in effect until either party shall give to the other party at least 30
days' prior written notice (or such other notice period as may be specifically
provided for in this Agreement) of the termination of this Agreement (a
"Termination Notice"), or until it is terminated in accordance with Section 8.
If a Termination Notice is given by either party the Company shall, without any
liability to you, have the right, exercisable at any time after such notice is
sent to elect any other person to the office or offices in which you are then
serving and to remove you from such office or offices. The period during which
you are employed under this Agreement is hereafter referred to as the "Term."
2. Compensation and Benefits.
(a) During the Term, you shall receive a salary for performance of
your obligations under this Agreement at an initial rate of $225,000 per year,
payable in such manner as is consistent with the Company's payroll practices for
executives and subject to increase (but not decrease unless such decrease is
applied at the same time to all executive officers of the Company and does not
exceed 10% of such Base Salary) by the Board of Directors in its sole
discretion. Such salary, as it may be adjusted from time to time, is hereinafter
referred to as the "Base Salary."
(b) During the Term, you shall have the benefit of and be entitled
to participate in such employee benefit plans and programs, including life,
disability and medical insurance, savings, retirement and other similar plans,
as the Company now has or hereafter may establish from time to time, and in
which you are entitled to participate pursuant to the terms thereof. The
foregoing, however, shall not be construed to require the Company to establish
any
such plans or to prevent the Company from modifying or terminating any such
plans, and no such action or failure thereof shall affect this Agreement.
(c) During the Term, you shall be entitled (i) to participate in the
Company's Management Incentive Compensation Plan or any successor thereto each
year in accordance with criteria and for amounts approved by the Board of
Directors, except as may otherwise be delegated to the Compensation Committee or
other relevant committee, and (ii) to be granted options to acquire stock of the
Company or other equity awards, to the extent (if any) approved by the
Compensation Committee or the relevant committee, under the Company's stock
option or equity incentive plans in effect from time to time (all such options
and equity awards, "Awards"). Without limiting the foregoing, you shall have a
minimum targeted bonus for each fiscal year of 35% of your Base Salary (with the
actual payment of any bonus being dependent on your achievement of targeted
objectives except as otherwise set forth in this Agreement). Each of the actual
annual bonuses paid to you each year is hereinafter referred to as an "Annual
Bonus."
(d) You shall be entitled to payments and benefits in connection
with a Change of Control Termination (as defined in Exhibit A hereto) and to
certain additional payments if you are subjected to the federal excise tax on
excess parachute payments, as more fully set forth in Exhibit A.
(e) You shall be entitled to four weeks of vacation each calendar
year during the Term.
(f) The Company will provide you at its expense with an annual
physical examination each year during the Term.
3. Duties.
(a) During the Term, you shall serve and the Company shall employ
you as the Vice President and General Manager, Power Electronics Division, of
the Company, with such executive duties and responsibilities consistent with
such positions and stature as the Chief Executive Officer of the Company may
from time to time determine. Your duties may be changed at any time and from
time to time hereafter, upon mutual agreement, consistent with the office or
offices in which you serve as deemed necessary by the Chief Executive Officer of
the Company. You shall report to, and act under the general direction of, the
Chief Executive Officer of the Company. You shall use your best efforts to carry
out the instructions of the Chief Executive Officer of the Company. You also
agree to perform such other services and duties consistent with the office or
offices in which you are serving from time to time and those responsibilities as
may from time to time be prescribed by the Board of Directors. You also agree to
serve as an officer and/or director of the Company and/or any of the Company's
other direct or indirect subsidiaries, in all cases in conformity with the
organizational documents and the policies of the Board of Directors of each such
subsidiary, without additional compensation. You will review and agree to comply
with the Company's then-current Code of Business Conduct to the same extent
required for other United States-based employees of the Company. You will
perform all of your responsibilities in compliance with all applicable laws.
-2-
(b) During the Term, you shall devote your entire business time and
energies during normal business hours to the business and affairs of the Company
and its subsidiaries. Nothing in this Section 3 shall be construed as
prohibiting you from investing your personal assets in businesses in which your
participation is solely that of a passive investor in such form or manner as
will not violate Section 5 hereof or require any services on your part in the
operation or affairs of those businesses. You may also participate in
philanthropic or civic activities as long as they do not materially interfere
with your performance of your duties hereunder. Service on any board of
directors other than those of the Company and its subsidiaries must be approved,
in advance, by the Board of Directors of the Company.
(c) During the Term, you shall be subject to the Company's rules,
practices and policies applicable to the Company's senior executive employees.
4. Expenses. The Company shall reimburse you for all reasonable
expenses incurred by you during the Term in connection with your employment upon
presentation of appropriate documentation therefor in accordance with the
Company's expense reimbursement practices. In the event during the Term the
Company's principal executive offices are relocated to a location that increases
your commute to work by more than 35 miles, the Company shall reimburse your
moving expenses (including reasonable costs relating to interim living
accommodations).
5. Restrictive Covenants.
(a) During the Term, and for the applicable Restricted Period (as
defined below) thereafter, you shall not, without the written consent of the
Board of Directors, directly or indirectly, become associated with, render
services to, invest in, represent, advise or otherwise participate as an
officer, employee, director, stockholder, partner or agent of, or as a
consultant for, any business anywhere in the world that is competitive with the
business in which the Company is engaged or in which the Company has taken
affirmative steps to engage (a "Competitive Business") as of the time your
employment with the Company ceases; provided, however, that (i) nothing herein
shall prevent you from investing in up to 5% of the securities of any company
listed on a national securities exchange or quoted on the NASDAQ quotation
system, as long as your involvement with any such company is solely that of a
stockholder, and (ii) nothing herein is intended to prevent you from being
employed by, or otherwise rendering services to, any business other than a
Competitive Business following the termination of your employment with the
Company. The Restricted Period shall be the one-year period following the date
your employment terminates. You acknowledge that the provisions of this Section
5 are reasonable in light of the Company's worldwide business operations and the
position in which you will serve at the Company and that the provisions will not
prevent you from obtaining employment after the termination of this Agreement.
(b) The parties hereto intend that the covenant contained in this
Section 5 shall be deemed a series of separate covenants for each appropriate
jurisdiction. If, in any judicial proceeding, a court shall refuse to enforce
all of the separate covenants deemed included in this Section 5 on grounds that,
taken together, they cover too extensive a geographic area, the parties intend
that those covenants (taken in order of the least populous jurisdictions) which,
if eliminated, would permit the remaining separate covenants to be enforced in
that proceeding,
-3-
shall, for the purpose of such proceeding, be deemed eliminated from the
provisions of this Section 5.
6. Confidentiality, Noninterference and Proprietary Information.
(a) In the course of your employment by the Company hereunder you
will have access to Confidential or Proprietary Data or Information of the
Company. You shall not at any time divulge or communicate to any person, nor
shall you direct any Company employee to divulge or communicate to any person
(other than to a person bound by confidentiality obligations similar to those
contained herein and other than as necessary in performing your duties
hereunder) or use to the detriment of the Company or for the benefit of any
other person, any of such Confidential or Proprietary Data or Information,
except to the extent the same (i) becomes publicly known other than through a
breach of this Agreement by you, (ii) was known to you prior to the disclosure
thereof by the Company to you from a source that was entitled to disclose it, or
(iii) is subsequently disclosed to you by a third party who shall not have
received it under any obligation of confidentiality to the Company. For purposes
of this Agreement, the term "Confidential or Proprietary Data or Information"
shall mean data or information not generally available to the public, including
personnel information, financial information, customer lists, supplier lists,
product and tooling specifications, trade secrets, information concerning
product composition and formulas, tools and dies, drawings and schematics,
manufacturing processes, information regarding operations, systems and services,
know-how, computer and any other electronic, processed or collated data,
computer programs, and pricing, marketing, sales and advertising data.
(b) You shall not, during the Term and for the applicable Restricted
Period after the termination of your employment with the Company, for your own
account or for the account of any other person, (i) solicit or divert to any
Competitive Business any individual or entity who is then a customer of the
Company or any subsidiary or affiliate of the Company or who was a customer of
the Company or any subsidiary or affiliate during the preceding twelve-month
period, (ii) employ, retain as a consultant, attempt to employ or retain as a
consultant, or solicit or assist any Competitive Business in employing or
retaining as a consultant any individual who is then an employee of the Company
or any subsidiary or affiliate or who was employed by the Company or any
subsidiary or affiliate during the preceding twelve-month period, or (iii)
otherwise interfere in any material respect with the Company's relationship with
any of its suppliers, customers, employees or consultants; provided, however,
that you shall not be prohibited from contacting suppliers or customers after
termination of your employment with regard to matters that do not violate your
non-competition or confidentiality obligations contained in Sections 5(a) and
6(a) or interfere in any material respect with the Company's relationship with
such parties.
(c) You shall at all times promptly disclose to the Company, in such
form and manner as the Company reasonably may require, any inventions,
improvements or procedural or methodological innovations, programs, methods,
forms, systems, services, designs, marketing ideas, products or processes
(whether or not capable of being trademarked, copyrighted or patented) conceived
or developed or created by you during and in connection with your employment
hereunder and which relate to the business of the Company ("Intellectual
Property"). All such Intellectual Property shall be the sole property of the
Company. You shall
-4-
execute such instruments and perform such acts as reasonably may be requested by
the Company to transfer to and perfect in the Company all legally protectable
rights in such Intellectual Property. If the Company is unable for any reason to
secure your signature on such instruments, you hereby irrevocably appoint the
Company and its officers and agents as your agents and attorneys-in-fact to
execute such instruments and to do such things with the same legal force and
effect as if executed or done by you.
(d) All written, electronic and other tangible materials, records
and documents made by you or coming into your possession during your employment
concerning any products, processes or equipment, manufactured, used, developed,
investigated or considered by the Company or otherwise concerning the business
or affairs of the Company, shall be the sole property of the Company, and upon
termination of your employment, or upon the request of the Company during your
employment, you shall deliver the same to the Company. In addition, upon
termination of your employment, or upon request of the Company during your
employment, you shall deliver to the Company all other Company property in your
possession or under your control, including Confidential or Proprietary Data or
Information and all Company credit cards and computer and telephone equipment.
7. Equitable Relief. With respect to the covenants contained in
Sections 5 and 6 of this Agreement, you acknowledge that any remedy at law for
any breach of said covenants may be inadequate and that the Company, in addition
to its rights at law, shall be entitled to specific performance or any other
mode of injunctive or other equitable relief to enforce its rights hereunder.
8. Termination of Term. The Term shall terminate upon the following
terms and conditions:
(a) The Term shall automatically terminate upon your death.
(b) The Term may be terminated by the Company upon your Disability.
For purposes of this Agreement, "Disability" shall mean your inability, due to
reasons of physical or mental health, to discharge properly a substantial
portion of your duties hereunder for any 180 days (whether or not consecutive)
during any period of 365 consecutive days, as determined in the opinion of a
physician reasonably satisfactory to both you and the Company. If the parties do
not agree on a mutually satisfactory physician within ten days after written
demand by one or the other, a physician shall be selected by the president of
the Pennsylvania Medical Association, and the physician shall, within 30 days
thereafter, make a determination as to whether Disability exists and certify the
same in writing. The services of the physician shall be paid for by the Company.
You shall fully cooperate with the examining physician, including submitting
yourself to such examinations as may be requested by the physician for the
purpose of determining whether you are disabled.
(c) The Term shall terminate immediately if the Company terminates
your employment for Cause. For purposes of this Agreement, "Cause" shall exist
upon a finding by the Board of Directors of any of the following: (i) an act or
acts of willful material misrepresentation, fraud or dishonesty by you that
results in the personal enrichment of you or another person or entity at the
expense of the Company; (ii) your admission, confession or
-5-
conviction of any felony or any other crime or offense involving misuse or
misappropriation of money or other property; (iii) any act involving gross moral
turpitude by you that adversely affects the Company; (iv) your continued
material breach of any obligations under this Agreement 30 days after the
Company has given you notice thereof in reasonable detail, if such breach has
not been cured by you during such period; or (v) your willful misconduct with
respect to your duties or gross misfeasance of office.
For purposes of this Section 8(c), no act or failure to act, on your
part shall be considered "willful" unless it is done, or omitted to be done, by
you in bad faith or without reasonable belief that your action or omission was
in the best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board of Directors
or based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by you in good faith and in the best
interests of the Company. Your termination of employment shall not be deemed to
be for Cause unless prior to such termination you have received a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the disinterested membership of the Board of Directors at a meeting of such
Board of Directors called and held for such purpose (after reasonable notice is
provided to you and you are given an opportunity to be heard before such Board
of Directors), finding that, in the good faith opinion of the Board of
Directors, you are guilty of the conduct described in clause (i), (ii), (iii),
(iv) or (v) above.
(d) The Term shall terminate if your employment is terminated in a
Change of Control Termination (as defined in Exhibit A).
(e) The Term shall terminate upon the expiration of the thirty (30)
day period after delivery of a Termination Notice if your employment is
terminated by the Company without Cause or by you.
9. Compensation Upon Termination of Term.
(a) For Any Reason. Upon termination of the Term: (i) you or your
estate, as applicable, shall be paid within fifteen business days after your
date of termination (A) your Base Salary through the date of termination, (B)
any then-unpaid Annual Bonus or other incentive compensation that you may have
earned pursuant to the terms of any applicable incentive compensation or bonus
plan of the Company with respect to any fiscal year or other performance period
completed prior to your date of termination, and (C) any then-unused accrued
vacation pay; (ii) you, your beneficiaries and/or your estate, as applicable,
shall be entitled to any payments and benefits under the benefits and incentive
plans and perquisite programs of the Company, in accordance with the respective
terms of those plans and perquisite programs (including without limitation, any
conversion option available to you under the Company's life insurance plan(s));
and (iii) you or your estate, as applicable, shall be reimbursed for your
business expenses incurred prior to termination in accordance with Section 4
above.
(b) Change of Control Termination. Upon the termination of the Term
by reason of a Change of Control Termination, you shall receive the payments and
benefits set forth in Exhibit A.
-6-
(c) Other Involuntary Terminations or Breach Termination. Upon the
termination of the Term that is not by reason of a Change of Control
Termination, but results from either a termination by the Company without Cause
other than as a result of your death or Disability, or termination by you which
is a Breach Termination, you shall also receive the following payments;
provided, however, that any payment made under this Section 9(c) shall be
reduced by any amount paid or payable to you with respect to the same type of
payment under any other plan maintained by the Company to avoid duplication of
payments:
(i) The Company shall pay you an amount equal to your Base
Salary at the rate in effect on the date of termination. Payment of
such amount will commence in the form of normal payroll installments
through the period ending as of the end of the second month
following the later of (A) the calendar year in which your
termination of employment occurs or (B) the taxable year of the
Company in which your termination of employment occurs. The balance
of such payments shall be made in a single lump sum payable within
the fifteen day period immediately following the end of the month in
which installment payments are to cease.
(ii) If you terminate employment on or after May 1st of a
fiscal year, you shall be entitled to an Annual Bonus for that
fiscal year, based on the actual bonus earned under the applicable
bonus plan for the fiscal year, pro-rated to reflect the number of
business days during the fiscal year in which you were employed by
the Company. This bonus shall be paid only when and if bonuses are
paid to other senior executives of the Company for such year, but,
if any such bonus is payable, it shall be paid no later than the
15th day of the third month following the later of (A) the calendar
year in which your termination of employment occurs or (B) the
taxable year of the Company in which your termination of employment
occurs.
As used in this Section 9(c), a "Breach Termination" shall mean a
termination of your employment by you due to a material breach by the Company
either prior to a Change of Control or following two years after the occurrence
of a Change of Control, of the provisions of this Agreement, which breach is not
cured within thirty (30) days following notice by you to the Company of such
breach which specifies in detail the circumstances giving rise to such breach.
In order for a termination by you to be a Breach Termination, you must give
notice to the Company of a material breach by the Company of this Agreement
within 60 days of the date you learn of the circumstances giving rise to such
material breach and you must actually give a Termination Notice in accordance
with Section 1 within the 30-day period following the expiration of the
Company's cure period for such breach.
(d) The payment by the Company of any compensation or Welfare
Benefits, if any, pursuant to Section 9(c) and Exhibit A shall be conditioned on
your execution of a Release (a "Release") in a form provided by and acceptable
to the Company. Such Release shall be substantially in the form of Exhibit B
hereto but may be modified by the Company in its sole discretion as it deems
appropriate to reflect changes in law or circumstances arising after the date of
this Agreement; provided, however, that no such modification shall reduce your
rights or
-7-
increase your obligations to the Company over those contemplated in this
Agreement, including the Exhibits hereto.
10. Indemnification. Prior to a Change of Control, the Company shall
indemnify you for your acts as an officer and director in the manner provided in
the by-laws of the Company, as in effect from time to time. On and after a
Change of Control, the Company shall indemnify you for your acts as an officer
and director of the Company in a manner no less favorable to you than as
provided in the current by-laws of the Company.
11. Representations. You hereby represent and warrant that you are
not subject to any employment agreement, non-competition or confidentiality
agreement or other commitment that either would be violated by your entering
into or performing your obligations under this Agreement or that would restrict
in any manner or interfere with the performance of your obligations under this
Agreement. You hereby further represent and warrant that you have not revealed
to the Company or any employee of the Company any confidential information of
any former employer, and you agree that you will not do so in the future.
12. Entire Agreement; Modification; Construction. This Agreement,
together with the Exhibits hereto and those portions of the offer letter dated
September 11, 2005 (the "Offer Letter") not specifically addressed in this
Agreement, and all other employee benefit plans in which you participate,
constitute the full and complete understanding of the parties, and supersede all
prior agreements and understandings, oral or written, between the parties, with
respect to the subject matter hereof; provided, however, that if the terms of
any such employee benefit plan shall be inconsistent with the provisions to this
Agreement, the terms of the benefit plan shall prevail. The Offer Letter,
Exhibit A and Exhibit B are hereby incorporated by reference and made a part of
this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by either party, or anyone acting on behalf of either party, that are
not set forth or referred to herein. This Agreement may not be modified or
amended except by an instrument in writing signed by the party against which
enforcement thereof may be sought.
13. Severability. Any term or provision of this Agreement that is
held to be invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent that invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Agreement in any other jurisdiction.
14. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement, which waiver must be in writing to be effective,
shall not operate as or be construed as a waiver of any subsequent breach.
15. Notices. All notices hereunder shall be in writing and shall be
sent by messenger or by certified or registered mail, postage prepaid, return
receipt requested, if to you, to your residence set forth above, and if to the
Company, to the Vice President, Human Resources, at the Company's address set
forth above, or to such other address as either party to this Agreement shall
specify to the other.
-8-
16. Assignability; Binding Effect. This Agreement shall not be
assignable by either party, except that it may be assigned by the Company to an
acquiror of all or substantially all of the assets of the Company or other
successor to the Company, subject to your rights arising from a Change of
Control as provided in Exhibit A and your other rights hereunder. This Agreement
shall be binding upon and inure to the benefit of you, your legal
representatives, heirs and distributees, and shall be binding upon and inure to
the benefit and detriment of the Company, its successors and assigns.
17. No Mitigation Required. No Offset. Following any termination of
your employment hereunder, you shall have no obligation to seek other employment
but shall not be prohibited from doing so, and no compensation paid to you as
the result of any other employment shall reduce any payment or benefit required
to be provided by the Company hereunder. Not in limitation of any other rights
which the Company may have, including without limitation, injunctive or other
equitable relief, in the event of a violation by you of any of the covenants set
forth in Section 5, Section 6 or Section 19 hereof, the Company may cease paying
any compensation and benefits, if any, to you under Section 9 hereof and may
seek recovery of any such amount paid to you during any period in which you were
in violation of the provisions of Section 5, Section 6 or Section 19. The
cessation and/or recovery of any of the payments described in Section 9(c) in
connection with any such violation shall not be deemed to be evidence that
monetary damages are sufficient to cure any damage to the Company for any such
violation.
18. Governing Law. All questions pertaining to the validity,
construction, execution and performance of this Agreement shall be construed and
governed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts or choice of law provisions thereof.
19. Nondisparagement. You agree not to publicly or privately
disparage the Company, its personnel, products or services either during your
employment by the Company or during the Restricted Period.
20. Survival. All of the provisions of this Agreement that by their
terms are to be performed or that otherwise are to endure after the termination
of this Agreement and/or the termination of your employment, including, without
limitation, Sections 5, 6, 7, 10, 17 and 19, shall survive the termination of
your employment and shall continue in effect for the respective periods therein
provided or contemplated.
21. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
23. Dispute Resolution. In the event of any claim or controversy
arising out of or relating to this Agreement or the performance, construction,
interpretation, enforcement or
-9-
breach hereof (excluding injunctive and other equitable relief regarding a
dispute over the covenants contained in Sections 5, 6, and 19 hereof) (a
"dispute"), the parties shall settle disputes in accordance with this Section
23.
(a) Notice and Selection of Arbitrators. The parties shall first
attempt to settle any disputes amicably between themselves. Should they fail to
do so, either party may, upon written demand from the claiming party of the
specific nature of any purported claims and the amount of damages attributable
to each such claim, served upon the other, submit such dispute to binding
arbitration. The arbitration panel shall consist of three arbitrators, shall
take place in Philadelphia, Pennsylvania and shall proceed in accordance with
the employment dispute resolution rules of the American Arbitration Association
("AAA").
Within 15 days after the commencement of arbitrations, each party
shall select one arbitrator from a list of arbitrators provided by the AAA. A
third neutral arbitrator shall be designated by the arbitrators selected by the
parties within 15 days of their appointment. In the event that any arbitrator is
not appointed within the prescribed time period, then either party may apply to
the AAA for the appointment of such arbitrator. Prior to the commencement of
hearings, each of the arbitrators appointed shall provide an oath or undertaking
of impartiality.
(b) Hearings. After the arbitrators have been appointed as provided
above, the arbitrators shall hold such meetings as a party may reasonably
request and at such meetings hear and consider any evidence that a party desires
to present. Within 60 days after the appointment of the third arbitrator, the
arbitrators shall make their determination.
(c) Determinations. The determination of a majority of the
arbitrators shall be final and binding on the parties, regardless of whether one
of the parties fails or refuses to participate in the arbitration. The
arbitrators shall have the power and authority to grant any remedy or relief
they deem just and equitable, including injunctive relief, specific performance
(excluding, however, equitable relief regarding a dispute over the covenants
contained in Sections 5, 6 and 19 hereof), and reasonable costs and expenses of
such arbitration and attorneys' fees. Absent any specific order of the
arbitrators, the costs and expenses of the arbitration shall be paid equally by
the parties. The arbitration award, decree or order shall be in writing and
shall be accompanied by a reasoned opinion. The award may be entered in any
court of competent jurisdiction, and any judgment, decree or order entered in
any such court and any related orders may be enforced as any other judgment,
decree or order of such court. The arbitration proceedings and all materials,
submissions and documents relating thereto shall be confidential, and except as
may be required by law neither a party nor an arbitrator may disclose the
existence, contents or results of any arbitration hereunder without the consent
of all parties hereto. All disputes shall be resolved in accordance with the
laws of the Commonwealth of Pennsylvania.
(d) Qualifications of Arbitrators. Any arbitrator chosen by or
through the AAA shall be chosen from a class of disinterested experts qualified
by education, training and/or experience to resolve the particular issue(s) in
dispute in an informed and efficient manner.
(e) Preservation of Remedies. Notwithstanding the preceding binding
-10-
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before, during or after an
arbitration proceeding is brought. The parties shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: obtaining provisional or ancillary remedies,
including injunctive and other equitable relief with regard to disputes over the
covenants contained in Sections 5, 6 and 19 hereof.
If you are in agreement with the foregoing, please sign the
duplicate original in the space provided below and return it to the Company.
C&D TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
Agreed as of the date above written:
/s/ Xxxxxxx Xxxxxxxx
---------------------------
Xxxxxxx Xxxxxxxx
-11-
EXHIBIT A
TO EMPLOYMENT AGREEMENT (THE "AGREEMENT")
OF XXXXXXX XXXXXXXX ("EXECUTIVE")
(Capitalized terms used herein and not otherwise defined have the meanings given
to them in the Agreement.)
I. Change of Control Termination. A "Change of Control Termination" means the
occurrence of any of the following within 24 months after a Change of Control
(as defined below): (a) the Executive's employment with the Company is
terminated by the Executive pursuant to a Termination for Good Reason (as
defined below); or (b) the Executive's employment with the Company is terminated
by the Company for any reason other than death, Disability or for Cause.
II. Certain Other Definitions.
(a) Change of Control. For purposes of the Agreement, a "Change of
Control" shall mean the first to occur of:
1. The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power
of the then-outstanding voting securities of the Company entitled to
vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that, for purposes
of this Section II(a)1, the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from
the Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any majority-owned
subsidiary of the Company, or (iv) any acquisition by any
corporation pursuant to a transaction that complies with Subsections
(A), (B) and (C) of Section II(a)3 below.
2. Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease, for any reason, to
constitute at least a majority of the Board of Directors; provided,
however, that any individual becoming a director subsequent to the
date of the Agreement whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors.
A-1
3. Consummation of a reorganization, merger, statutory share
exchange or consolidation or similar corporate transaction involving
the Company or any of its subsidiaries, a sale or other disposition
of all or substantially all of the assets of the Company, or the
acquisition of assets or stock of another entity by the Company or
any of its subsidiaries (each, a "Business Combination"), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of
such transaction, owns the Company or all or substantially all of
the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding any
corporation resulting from such Business Combination or any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 30% or more of, respectively, the
then-outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of the
then-outstanding voting securities of such corporation, except to
the extent that such ownership existed prior to the Business
Combination, and (C) at least a majority of the members of the board
of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board of
Directors providing for such Business Combination; or
4. Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, no Change of Control of the Company shall be
deemed to have occurred for purposes of this Agreement by reason of any actions
or events in which the Executive participates in a capacity other than in his
capacity as an executive or director of the Company.
(b) Termination for Good Reason. For purposes of this Exhibit A, a
"Termination for Good Reason" means a termination of the Executive's employment
by the Executive by written Termination Notice given to the Company within 90
days after the Executive learns of the occurrence of the Good Reason event. A
Termination Notice for a Termination for Good Reason shall indicate the specific
provision in Section II(c) relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for Termination for Good
Reason. The failure by the Executive to set forth in such Termination Notice any
facts or circumstances which contribute to the showing of Good Reason shall not
waive any right of Executive hereunder or preclude the Executive from asserting
such fact or circumstance in
A-2
enforcing his rights hereunder. The Termination Notice for a Termination for
Good Reason shall provide for a date of termination not less than 10 nor more
than 60 days after the date such Termination Notice is given.
(c) Good Reason. For purposes of this Exhibit A, "Good Reason" shall mean
the occurrence, without the Executive's express written consent, of any of the
following circumstances, unless such circumstances are fully corrected prior to
the date of termination specified in the Termination Notice for a Termination
for Good Reason as contemplated in Section II(b) above: (i) any material
diminution of the Executive's positions with Company or any material positions
with its subsidiaries or affiliates, duties or responsibilities hereunder
(except in each case in connection with the termination of the Executive's
employment for Cause or due to the Executive's Disability or death, or
temporarily as a result of Executive's illness or other absence), or the
assignment to the Executive of duties or responsibilities that are inconsistent
with the Executive's position under the Agreement at the time of a Change of
Control; (ii) removal of the Executive from, or the failure to reelect the
Executive to, any office he holds with the Company as of the date of the Change
of Control; (iii) relocation of the Company's principal executive offices to a
location that increases the Executive's commute to work by more than 35 miles:
(iv) failure by the Company, after the Change of Control, (A) to continue in
effect, without amendment adverse to the Executive, any bonus plan, program or
arrangement in which the Executive is entitled to participate immediately prior
to the Change of Control (the "Bonus Plans"), provided that it shall not be
"Good Reason" if the Company amends or terminates any Bonus Plan but provides
the Executive with substantially similar benefits under comparable substitute
plans ("Substitute Plans"), or (B) to continue the Executive as a participant in
the Bonus Plans and/or Substitute Plans on at least the same basis as to
potential amount of the bonus and substantially the same level of criteria for
achievability thereof as the Executive participated in immediately prior to any
change in such plans or awards, in accordance with the Bonus Plans and the
Substitute Plans; (v) any failure to pay the Executive his Base Salary in a
timely manner or any reduction in the amount of the Base Salary (vi) any
material breach by the Company of any provision of the Agreement; or (vii)
failure of any successor to the Company to promptly acknowledge in writing the
obligations of the Company hereunder.
III. Payments and Benefits. If a Change of Control Termination occurs, the
Executive shall be entitled to receive, subject to the execution of the Release,
the payments and benefits set forth below in this Section III in consideration
of the Executive's agreements under the Agreement, including but not limited to
the Executive's agreement not to compete with the Company for a period of one
year after a Change of Control Termination pursuant to Section 5(a) of the
Agreement; provided, however, that any payment made or benefit provided under
this Section III shall be reduced by any amount paid or payable to the Executive
and/or the Executive's family with respect to the same type of payment or
benefit under any other plan maintained by the Company to avoid duplication of
payments or benefits:
(a) The Company shall pay to the Executive within fifteen days following
the Change of Control Termination, a lump sum amount equal to (i) two times the
sum of (x) the Base Salary as in effect immediately before the date of
termination (disregarding any reduction thereof in violation of Section 2(a) of
the Agreement) and (y) the Annual Bonus Amount. The "Annual Bonus Amount" shall
mean the greater of (i) the average of the Annual Bonuses paid to the
A-3
Executive with respect to each of the three most recently completed fiscal years
of the Company before the date of termination for which a bonus has been paid or
(ii) the Executive's Targeted Bonus Amount. The Executive's "Targeted Bonus
Amount" shall mean (x) the higher of 35% and the percentage of the Executive's
targeted bonus in effect before the date of termination for purposes of
determining the Executive's Annual Bonus for the year in which the termination
occurs, times (y) the amount of the Executive's Base Salary as in effect for the
year in which the Executive's termination occurs (disregarding any reduction
thereof in violation of Section 2(a) of the Agreement).
(b) The Company shall for two years after the date of the Change of
Control Termination provide the Executive and the Executive's eligible
beneficiaries (if applicable) with Welfare Benefits (as defined below) provided
to the Executive prior to the Change of Control Termination, other than
disability insurance and severance. Notwithstanding the foregoing, to the extent
the Company's plans providing Welfare Benefits do not permit the continued
participation by the Executive and/or the Executive's eligible beneficiaries or
such participation would have an adverse tax impact on such plans or on the
other participants in such plans or is otherwise prohibited by applicable law,
the Company may instead provide materially equivalent benefits to the Executive
and/or the Executive's eligible beneficiaries outside such plans (which, in the
case of medical insurance benefits, may be provided by the Company paying a
portion of the premium for the continuation of such medical benefits pursuant to
the provisions of the Consolidated Omnibus Budget Reconciliation Act ("COBRA")
which is equal to the portion of the premium it then pays for active executive
employees' medical premiums. The Executive's entitlement to COBRA coverage shall
in any event be measured from the date of termination of employment.
Furthermore, if the Company is unable to continue the Executive's life insurance
coverage, it shall pay the Executive an amount equal to the premium paid during
the year prior to termination times the number of months for which such benefits
would have otherwise been continued hereunder. The Executive agrees to complete
such forms and take such physical examinations as may be reasonably requested by
the Company in connection with such life insurance coverage. "Welfare Benefits"
means benefits under all health and medical (other than executive physicals),
life and other welfare plans (as defined in Section 3(l) of the Employee
Retirement Income Security Act of 1974, as amended), in which the Executive was
participating immediately prior to the date of termination, except for
disability plans and severance plans.
(c) All outstanding Options and restricted stock awards that have been
granted to the Executive by the Company at any time but have not yet expired or
vested and upon which vesting depends solely upon the Executive's remaining
employed by the Company for a specified period of time, shall immediately vest
or become nonforfeitable, as the case may be. In the event the foregoing
sentence becomes applicable, the Company agrees to cause the Board of Directors
to take all steps necessary to implement the foregoing sentence.
(d) The Company, at its expense, shall provide the Executive with
outplacement services at a level appropriate for the most senior level of
executive employees through an outplacement firm of the Executive's choice for a
period of up to one year after the date of the Change of Control Termination.
A-4
IV. Certain Additional Payments.
(a) Anything in the Agreement and this Exhibit A to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any Payment would be subject to the Excise Tax, then the
Executive shall be entitled to receive an additional payment (the "Gross-Up
Payment") in an amount such that, after payment by the Executive of all taxes
(and any interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties imposed
with respect thereto) and Excise Tax imposed upon the Gross-Up Payment and after
the payment of all additional taxes and interest imposed under Code Section
409A(a)(1)(B) on the Gross-Up Payment and any severance payment made to the
Executive hereunder, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing
provisions of this Section IV(a), if it shall be determined that the Executive
is entitled to the Gross-Up Payment, but that the Parachute Value of all
Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up
Payment shall be made to the Executive and the amounts payable under this
Agreement shall be reduced so that the Parachute Value of all Payments, in the
aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable
hereunder, if applicable, shall be made by first reducing the payments under
Section III(a) of this Exhibit A unless an alternative method of reduction is
elected by the Executive, and in any event shall be made in such a manner as to
maximize the Value of all Payments actually made to the Executive. For purposes
of reducing the Payments to the Safe Harbor Amount, only amounts payable under
this Agreement (and no other Payments) shall be reduced. If the reduction of the
amount payable under this Agreement would not result in a reduction of the
Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable
under the Agreement shall be reduced pursuant to this Section IV(a). The
Company's obligations under this Section IV shall not be conditioned upon the
Executive's termination of employment, and they shall survive the termination of
the Executive's employment and the Term with respect to any Payments that are
determined by the Accounting Firm to be contingent on a "change of control" (as
defined in Section 280G of the Code) of the Company that occurs during the Term.
(b) Subject to the provisions of Section IV(c), all determinations
required to be made under this Section IV, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment and the assumptions to
be utilized in arriving at such determination, shall be made by KPMG, or such
other nationally recognized certified public accounting firm as may be
designated by the Executive (the "Accounting Firm"). The Accounting Firm shall
provide detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive that there
has been a Payment or such earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive may
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section IV, shall be paid by the Company to the Executive within five
business days of the receipt of the Accounting Firm's determination, which
determination shall be made no later than the end of the second month following
the later of (1) the calendar year in which the Executive's employment with the
Company terminates and (2) the taxable year of the Company in which the
Executive's
A-5
employment with the Company terminates. In the event that such determination can
not be made within such period, payment may be made as soon as practicable after
such determination can be made. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments that will not have been made by the Company should have been made (the
"Underpayment"), consistent with the calculations required to be made hereunder.
In the event the Company exhausts its remedies pursuant to Section IV(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable, but no later than ten business days after the Executive is informed
in writing of such claim. The Executive shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that the Company desires to contest such claim,
the Executive shall:
(1) give the Company any information reasonably requested by the
Company relating to such claim,
(2) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(3) cooperate with the Company in good faith in order to effectively
contest such claim, and
(4) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section IV(c),
the Company shall control all proceedings taken in connection with such contest,
and, at its sole discretion, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the applicable taxing
authority in respect of such claim and may, at its sole discretion, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a
A-6
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties) imposed with respect to such
advance or with respect to any imputed income in connection with such advance;
and provided, further, that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which the Gross-Up Payment would be payable hereunder,
and the Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of a Gross-Up Payment or an
amount advanced by the Company pursuant to Section IV(c), the Executive becomes
entitled to receive any refund with respect to the Excise Tax to which such
Gross-Up Payment relates or with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section IV(c), if
applicable) promptly pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If, after
the receipt by the Executive of an amount advanced by the Company pursuant to
Section IV(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
(e) Notwithstanding any other provision of this Section IV, the Company
may, in its sole discretion, withhold and pay over to the Internal Revenue
Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of any Gross-Up Payment, and the Executive hereby
consents to such withholding.
(f) Definitions. The following terms shall have the following meanings for
purposes of this Section IV.
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended,
or any successor thereto.
(ii) "Excise Tax" shall mean the excise tax imposed by Section 4999
of the Code, together with any interest or penalties imposed with respect
to such excise tax.
(iii) "Parachute Value" of a Payment shall mean the present value as
of the date of the change of control for purposes of Section 280G of the
Code of the portion of such Payment that constitutes a "parachute payment"
under Section 280G(b)(2), as determined by the Accounting Firm for
purposes of determining whether and to what extent the Excise Tax will
apply to such Payment.
A-7
(iv) A "Payment" shall mean any payment or distribution in the
nature of compensation (within the meaning of Section 280G(b)(2) of the
Code) to or for the benefit of the Executive, whether paid or payable
pursuant to this Agreement or otherwise.
(v) The "Safe Harbor Amount" means 2.99 times the Executive's "base
amount," within the meaning of Section 280G(b)(3) of the Code.
(vi) "Value" of a Payment shall mean the economic present value of a
Payment as of the date of the change of control for purposes of Section
280G of the Code, as determined by the Accounting Firm using the discount
rate required by Section 280G(d)(4) of the Code.
V. Legal Fees. If, following a Change of Control, if the Company fails to
perform any of its obligations under this Agreement or the Company or any other
person asserts the invalidity of any provision of this Agreement and the
Executive incurs any costs in successfully enforcing or defending any of the
provisions of this Agreement, including legal fees and expenses and court costs,
the Company shall reimburse the Executive for all such costs incurred by him,
unless the trier of fact in such dispute determines that the Executive has not
been at least partially successful in such enforcement or defense.
A-8
EXHIBIT B
RELEASE
This Release is made this _____ day of _______________, ____ by and
between C&D Technologies, Inc. ("Employer") -------- and Xxxxxxx Xxxxxxxx
("Employee"). --------
Recitals:
WHEREAS, the parties are parties to an Employment Agreement (the
"Employment Agreement") dated February 1, 2006, pursuant to which Employee was
employed by Employer; and
WHEREAS, Employee's employment and the Term, as defined in the
Employment Agreement, have terminated; and
WHEREAS, the execution and delivery of this Release by Employee is a
condition to the Employer's obligations to pay certain compensation and provide
certain benefits to Employee under the Employment Agreement;
NOW THEREFORE, the parties hereto, intending to be legally bound, in
consideration of the mutual promises and undertakings set forth herein, do
hereby agree as follows:
1. As of _____________________, ____, Employee's employment with
Employer shall terminate, and Employee shall have no further job
responsibilities to perform for Employer; provided, however, that Employee shall
cooperate with Employer in transitioning Employee's job responsibilities as
Employer shall reasonably request, provided that Employee shall be entitled to
receive reasonable compensation for any services rendered prior to such date and
shall not be obligated to take any action that would interfere with any
subsequent employment of Employee or otherwise result in economic hardship to
Employee.
2. Employer shall pay and provide to Employee the amounts and
benefits contemplated pursuant to Section __ [and Exhibit A] of the Employment
Agreement, less applicable deductions; provided however, the first payment shall
not be due and payable until ten days after the execution by Employee and
delivery to Employer of this Release..
3. For and in consideration of the monies and benefits paid to
Employee by Employer, as more fully described in Section 2 above, and for other
good and valuable consideration, Employee hereby waives, releases and forever
discharges Employer, its assigns, predecessors, successors, and affiliated
entities, and its current or former stockholders, officers, directors,
administrators, agents, servants and employees, individually and as
representatives of the corporate entity (hereinafter collectively referred to as
"Releasees"), from any and all claims, suits, debts, dues, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, bonuses, controversies,
agreements, promises, charges, complaints, damages, sums of money, interest,
attorney's fees and costs, or causes of action of any kind or nature whatsoever
whether in law or equity, including, but not limited to, all claims arising out
of his employment or termination of employment with Employer, such as all claims
for wrongful discharge, breach of contract, either
B-1
express or implied, interference with contract, emotional distress, fraud,
misrepresentation, defamation, claims arising under the Civil Rights Acts of
1964 and 1991, as amended, the Americans With Disabilities Act, the Age
Discrimination in Employment Act (ADEA), the National Labor Relations Act, the
Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974
(ERISA), as amended, the Family and Medical Leave Act, the Pennsylvania Human
Relations Act, the Pennsylvania Wage Payment & Collection Law, the Pennsylvania
Minimum Wage Act of 1968, the Pennsylvania Equal Pay Law, and any and all other
claims arising under federal, state or local law, rule, regulation,
constitution, ordinance or public policy whether known or unknown, arising up to
and including the date of execution of this Release; provided, however, that the
parties do not release each other from any claim of breach of the terms of this
Release. This release of rights does not extend to claims that may arise after
the date of this Release, including without limitation, for payments or benefits
described in Section 2 of this Release, nor to claims under employee benefit
plans that are qualified under Section 401(a) of the Internal Revenue Code, nor
to any rights of indemnification by the Company to which the Employee is
otherwise entitled. Employee agrees that Employee will not initiate any charge
or complaint or institute any claim or lawsuit against Releasees or any of them
based on any fact or circumstance occurring up to and including the date of the
execution by Employee of this Release based upon a claim that is released
hereunder.
4. Employee agrees that the payments made and other consideration
received pursuant to this Release are not to be construed as an admission of
legal liability by Releasees or any of them and that no person or entity shall
utilize this Release or the consideration received pursuant to this Release as
evidence of any admission of liability since Releasees expressly deny liability.
5. Employee affirms that the only consideration for the signing of
this Release are the terms stated herein and in the Employment Agreement and
that no other promise or agreement of any kind has been made to Employee by any
person or entity whatsoever to cause Employee to sign this Release.
6. Employee and Employer affirm that the Employment Agreement and
this Release set forth the entire agreement between the parties with respect to
the subject matter contained herein and supersede all prior or contemporaneous
agreements or understandings between the parties with respect to the subject
matter contained herein. Further, there are no representations, arrangements or
understandings, either oral or written, between the parties, which are not fully
expressed herein. Finally, no alteration or other modification of this Release
shall be effective unless made in writing and signed by both parties.
7. Employee acknowledges that Employee has been given a period of at
least 21 days within which to consider this Release.
8. Following the execution of this Release, Employee has a period of
seven days from the date of execution to revoke this Release, and this Release
shall not become effective or enforceable until the revocation period has
expired.
9. Employee certifies that Employee has returned to Employer all
keys, identification cards, credit cards, computer and telephone equipment and
other property or
B-2
information of Employer in Employee's possession, custody, or control including,
but not limited to, any information contained in any computer files maintained
by Employee during Employee's employment with Employer. Employee certifies that
Employee has not kept the originals or copies of any documents, files, or other
property of Employer which Employee obtained or received during Employee's
employment with Employer.
10. Employee acknowledges and agrees that the execution of this
Release does not supercede any of the provisions of the Employment Agreement
which otherwise survive the termination of Employee's employment with the
Employer, including without limitation, Section 5, 6, 7 and 19 thereof.
11. Employee acknowledges that Employer advised Employee to consult
with an attorney prior to executing this Release.
12. Employee affirms that Employee has carefully read this Release,
that Employee fully understands the meaning and intent of this document, that
Employee has signed this Release voluntarily and knowingly, and that Employee
intends to be bound by the promises contained in this Release for the aforesaid
consideration.
IN WITNESS WHEREOF, Employee and the authorized representative of
Employer have executed this Release on the dates indicated below:
C&D TECHNOLOGIES, INC.
Dated: By:
---------------------------- -----------------------------------
Title:
--------------------------------
Dated:
---------------------------- --------------------------------------
Xxxxxxx Xxxxxxxx
B-3
ENDORSEMENT
I, Xxxxxxx Xxxxxxxx, hereby acknowledge that I was given 21 days to
consider the foregoing Release and voluntarily chose to sign the Release prior
to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the
Commonwealth of Pennsylvania that the foregoing is true and correct.
EXECUTED this ________ day of __________________, ____, at
____________________________, Pennsylvania.
----------------------------
Xxxxxxx Xxxxxxxx
B-4
