EXHIBIT 10.28
EXHIBIT 10.28
SEPARATION AGREEMENT
This Separation Agreement is made between Exide Corporation, a
Delaware corporation ("Exide"), and Xxxx X. Xxxxxxxx.
Whereas, Xx. Xxxxxxxx has voluntarily resigned his position as an
employee, officer and director of Exide, effective July 31, 1998; and
Whereas, Xx. Xxxxxxxx and Exide wish to provide for an orderly
transition that serves their mutual and individual interests.
Now, therefore, in consideration of the above premises, Xx. Xxxxxxxx'x
past services to Exide, and the mutual terms stated below, and other valuable
consideration, the parties agree as follows:
1. Transition and Responsibilities. Effective July 31, 1988, Mr.
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Xxxxxxxx has relinquished all his responsibilities and functions as an employee,
officer and director of Exide. For a period of two years after July 31, 1998,
Xx. Xxxxxxxx shall render reasonable advisory and consulting services to Exide
with regard to matters that may be requested by Exide's Board of Directors or
its designee from time to time. As a consultant pursuant to this Separation
Agreement, Xx. Xxxxxxxx shall perform only those tasks on behalf of Exide,
communicate only with those Exide employees or representatives, and avail
himself only of those Exide facilities or resources as specifically authorized
by Exide's Board of Directors or its designee or by this Separation Agreement,
or as necessary to perform any requested advisory and consulting services
hereunder. Such advisory and consulting services shall be of a nature not to
preclude Xx. Xxxxxxxx from conducting his then-current business affairs.
2. Separation Benefits. Exide will provide Xx. Xxxxxxxx with the
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following:
A. Consulting fees totalling $600,000.00, payable as follows: six
(6) monthly payments of $25,000.00, commencing on August 15, 1998 and,
thereafter, payable on a quarterly basis, in equal amounts, over the
remaining period of the consulting arrangements set forth in paragraph
1 above.
B. Continue Xx. Xxxxxxxx and his dependents in Exide's health
insurance plan and Xx. Xxxxxxxx in Exide's long-term disability plan
through July 31, 2000. Exide will pay directly to the insurance
provider all premiums through July 31, 2000 for participation by Xx.
Xxxxxxxx and his dependents in Exide's health insurance plan and by
Xx. Xxxxxxxx in Exide's long-term disability plan. Following July 31,
2000, Xx. Xxxxxxxx and his dependents shall be notified of and
eligible for COBRA continuation coverage.
C. Payment of any unused vacation leave accrued by Xx. Xxxxxxxx as of
July 31, 1998.
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D. An allowance of up to $25,000.00 for outplacement services for Xx.
Xxxxxxxx, payable directly to a firm not unacceptable to Exide.
E. Xx. Xxxxxxxx acknowledges that Exide makes no representation or
warranties of any kind to him concerning the tax consequences, if any,
of any separation benefits Xx. Xxxxxxxx receives under this Agreement.
Xx. Xxxxxxxx agrees to pay any federal, state or local taxes which are
assessed against him with respect to any such benefits.
F. Any compensation previously and correctly deferred by Xx. Xxxxxxxx
under the terms of the Exide Deferred Compensation Plan, together with
any accrued interest and earnings thereon and all amounts attributable
thereto. No later than sixty (60) days following the execution of
this Agreement, Xx. Xxxxxxxx shall receive in a lump sum any such
compensation under the plan.
G. Exide acknowledges that this agreement is not intended to affect
any rights under Exide's Selective Executive Retirement Agreement with
Xx. Xxxxxxxx which previously have vested, and in accordance with the
terms of the Selective Executive Retirement Agreement, Xx. Xxxxxxxx
shall be entitled to benefits upon reaching the age of 59-1/2.
H. Reasonable expenses incurred in connection with performance of any
advisory and consulting services provided hereunder.
I. Nothing contained in this Separation Agreement shall serve to
restrict or enlarge any rights, if any, Xx. Xxxxxxxx may have with
respect to Exide's Stock Option Plan or Supplemental Executive
Retirement Plan, other than as may be set forth in Paragraphs F and H,
above.
Xx. Xxxxxxxx'x failure to perform under paragraphs 1, 5, 7, 8, 10 and
12 of this Agreement shall void Exide's obligations of further payment under
subparagraph A, but otherwise shall not affect the parties' right or obligations
under this Agreement.
3. Mutual Release.
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A. Except as agreed herein, Xx. Xxxxxxxx, on behalf of himself and
his agents, assignees, attorneys, heirs, executors and administrators,
releases, forever discharges and covenants not to xxx Exide (including
any current, former or subsequent predecessor, successor, assignee,
parent, subsidiary or affiliate of Exide, and each of their respective
officers, directors, employees, representatives or agents) with
respect to any liability, claim, demand, action, cause of action,
suit, grievance, debt, sum of money, controversy, agreement
(including, without limitation, any Employment Agreement previously
made between Xx. Xxxxxxxx and Exide), promise, damage, demand, back
pay, front pay, cost, expense, attorney's fees or remedy of any type,
known or unknown, which Xx. Xxxxxxxx has, may have or has ever had, in
law or equity, or before any federal, state or local court or
administrative agency, through the date of Xx. Xxxxxxxx'x execution of
this Separation Agreement on account of, or in relation to, any
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matter, cause, circumstance, act or omission arising out of or in
connection with Xx. Xxxxxxxx'x employment with or resignation from
Exide, including any claims, demands or actions under any federal,
state or local statute or regulation, or the common law of any state,
regarding in any way discrimination in employment or termination of
employment, except where a claim is based upon intentional misconduct.
There is expressly reserved from the effect of this release any claim
which Xx. Xxxxxxxx may now or hereinafter have, or benefit which the
Exide Board of Directors in its discretion may grant, with respect to
(i) this Severance Agreement; (ii) Exide's indemnification
obligations, which will continue in full force and effect as to Xx.
Xxxxxxxx'x actions prior to the date hereof, including but not limited
to Exide's obligations under the articles of incorporation and the by-
laws of Exide, and state law; (iii) employee or director and officer
liability insurance; (iv) Xx. Xxxxxxxx'x entitlement to and rights
under Exide's stock option plan, employee pension plan and
supplemental executive retirement plan; and (v) defense by Exide for
any acts or omissions occurring or alleged to have occurred in
connection with Xx. Xxxxxxxx'x employment with or resignation from
Exide.
B. Except as agreed herein, Exide, on behalf of itself and any
current, former or subsequent predecessor, successor, assignee,
parent, subsidiary or affiliate of Exide, and each of their respective
officers, directors, employees, representatives or agents releases,
forever discharges and covenants not to xxx Xx. Xxxxxxxx with respect
to any liability, claim, demand, action, cause of action, suit,
grievance, debt, sum of money, controversy, agreement (including,
without limitation, any Employment Agreement previously made between
Xx. Xxxxxxxx and Exide), promise, damage, demand, back pay, front pay,
cost, expense, attorney's fees or remedy of any type, known or
unknown, which Exide has, may have or has ever had, in law or equity,
or before any federal, state or local court or administrative agency,
through the date of Exide's execution of this Separation Agreement on
account of, or in relation to, any matter, cause, circumstance, act or
omission arising out of or in connection with Xx. Xxxxxxxx'x
employment with or resignation from Exide, including any claims,
demands or actions under any federal, state or local statute or
regulation, or the common law of any state, except where a claim is
based on intentional misconduct.
There is expressly reserved from the effect of this release any claim
which Xx. Xxxxxxxx may now or hereinafter have with respect to (i)
this Severance Agreement; (ii) Exide's indemnification obligations,
which will continue in full force and effect as to Xx. Xxxxxxxx'x
actions prior to the date hereof, including but not limited to Exide's
obligations under the articles of incorporation and the by-laws of
Exide, and state law; (iii) employee or director and officer liability
insurance; (iv) Xx. Xxxxxxxx'x entitlement to and rights under Exide's
stock option plan, employee pension plan and supplemental executive
retirement plan; and (v) defense by Exide for any acts or omissions
occurring or alleged to have
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occurred in connection with Xx. Xxxxxxxx'x employment with or
resignation from Exide.
4. ADEA Release. Xx. Xxxxxxxx specifically agrees that:
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A. He is releasing any and all claims under the Age Discrimination in
Employment Act of 1967, as amended by the Older Workers Benefit Protection Act,
arising up to the date of the execution of this Separation Agreement;
B. He consulted with an attorney of his choice before he executed
this instrument.
5. Return of Exide Property. Xx. Xxxxxxxx shall promptly return to
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Exide any of its property in his possession or control, including without
limitation all cellular telephones, pagers, credit cards, documents (including,
without limitation, written or computer-based materials and other information
contained in any tangible medium of expression or recording, and any copies,
excerpts, summaries, compilations or abridgments thereof) and other property of
any kind, except for the white 1997 Cessna T-210M, Serial number T 2106207, of
which he shall have possession and sole use during the term of the consulting
agreement set forth in paragraph A, above, and the 1996 Chrysler LHS automobile,
titles to which shall be, and by this agreement is, conveyed to him free and
clear of all claims and liens. At the end of the term of the consulting
agreement set forth in paragraph 1, Xx. Xxxxxxxx shall have the option to
purchase the airplane from Exide at the then existing market value. Xx.
Xxxxxxxx shall promptly clear any outstanding cash advances or Exide credit card
charges by filing appropriate expense reports and making any appropriate
repayments. Exide shall promptly reimburse Xx. Xxxxxxxx for all outstanding
expenses reimbursable in accord with Exide's policy upon filing of appropriate
expense reports.
6. Confidential Information. Xx. Xxxxxxxx acknowledges that during
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his employment with Exide, he has had access to and was provided with certain
proprietary trade secrets and confidential business information, including,
without limitation, Exide's prior, current and future financing, financial and
funding information or strategies, the communications made to and between its
corporate directors, and Exide's accounting and litigation plans or strategies.
Xx. Xxxxxxxx further acknowledges that all the above proprietary trade secrets
and confidential business information (i) remain unknown to Exide's competitors
and to the general public, (ii) derive independent actual or potential economic
value from the fact that such secrets and information are kept confidential, and
(iii) Exide's proprietary trade secrets and confidential business information
are the subjects of Exide's efforts, which are reasonable under the
circumstances, to maintain their secrecy.
7. Confidentiality Covenant. Xx. Xxxxxxxx shall not disclose any
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proprietary trade secret information or any other confidential business
information belonging to Exide to anyone other than his attorneys or Exide, its
officers, directors, employees, agents, affiliates, successors and assigns, or
as directed by such person, unless required to do so by a court or government
agency or as necessary to perform any advisory and consulting services
hereunder.
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8. Injunctive Relief. In view of Xx. Xxxxxxxx'x access to Exide's
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proprietary trade secrets and confidential business information, and in
consideration of the value of such property to Exide, Xx. Xxxxxxxx agrees that
the covenant contained in paragraph 7 above is necessary to protect Exide's
interests in its Confidential matter, and to protect and maintain customer
relationships and other legitimate, proprietary interests of Exide, both actual
and potential, which Xx. Xxxxxxxx would not have had access to but for his
employment relationship with Exide. Xx. Xxxxxxxx acknowledges that enforcement
of the covenants in Paragraph 7 above would not prevent him from earning a
livelihood. Xx. Xxxxxxxx further agrees that in the event of his actual or
threatened breach of any of the covenants set forth herein, Exide would be
irreparably harmed and the full extent of injury resulting therefrom would be
difficult to calculate and Exide therefore will not have an adequate remedy at
law. Accordingly, Xx. Xxxxxxxx agrees that temporary and permanent injunctive
relief would be appropriate remedies against such breach, without bond or
security; provided, however, that nothing herein shall be construed a limiting
any other legal or equitable remedies available to Exide.
9. Positive Light. Xx. Xxxxxxxx will use his best efforts to insure
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that all has own written and oral communications, and any such communications by
other persons over whom he has any control, will promote Exide, its current or
former officers, directors or agents, in a clearly positive and favorable light.
Exide will use its best efforts to insure that all its own written and oral
communications, and any such communications by other persons over whom it has
any control, will promote Xx. Xxxxxxxx in a clearly positive and favorable
light. The parties also will use their respective best efforts to project a
positive and favorable attitude toward each other, and to instill a similar
attitude in other people. At no time will the parties, individually or through
any other person or entity, in any manner make, disseminate or participate in
any disparaging, defamatory, negative or adverse statements concerning each
other. Nothing contained in this paragraph shall be construed as prohibiting
Xx. Xxxxxxxx, Exide or its employees from providing truthful information.
10. Confidential Terms. Xx. Xxxxxxxx and Exide each warrant that the
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terms of this Agreement will be regarded as a strictly confidential
communication between the parties, and that neither party will, by act or
omission, in any manner or means, disclose the terms of the Agreement to any
person or entity. This warranty does not apply to Xx. Xxxxxxxx'x disclosures to
his spouse, financial and tax advisors, lawyers, any court or government agency,
or as necessary to enforce the terms of this agreement, to Exide's disclosures
to its financial advisors and lawyers, or to disclosures of either party
required by law.
11. Employee Agreement. This agreement shall terminate and supersede
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the Employee Agreement between Exide and Xx. Xxxxxxxx dated May 23, 1989, and
any modifications thereof.
12. No Admission. The parties to this instrument acknowledge and
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agree that Exide's and Xx. Xxxxxxxx'x execution of this Separation Agreement
does not constitute and shall not be construed as an admission of wrongdoing of
any kind on the part of the entities and persons hereby released, by whom
wrongdoing of any kind is expressly denied.
13. Integration. Xx. Xxxxxxxx acknowledges that the only
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consideration for this Separation Agreement is described in this instrument;
that no other promise or agreement of
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any kind has been made to or with him by any person or entity whatsoever to
cause him to execute this Separation Agreement, that this instrument constitutes
the entire agreement between the parties, and the terms set forth herein are
contractual and not a mere recital.
14. Waiver. Any failure either by Exide or Xx. Xxxxxxxx to insist on
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strict compliance with any of the terms, covenants and conditions of this
Agreement shall not be deemed a waiver or relinquishment of such terms,
covenants and conditions or of any similar right or power hereunder at any
subsequent time.
15. Severability. If any provision of this Agreement shall be
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declared by any court to be void or unenforceable, the other provisions shall
not be affected but shall remain in full force and effect. Furthermore, if any
of the restrictions against various post-employment activities is found to be
unreasonable or invalid, the court before which the matter is pending shall
enforce the restriction to the maximum extent it deems to be valid and
enforceable. Such restrictions shall be considered divisible both as to time
and as to geographical scope, with each month and geographical area being deemed
separate.
16. Successors. This Separation Agreement shall be binding upon
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Exide and Xx. Xxxxxxxx, and their respective heirs, personal representatives,
successors and assigns.
17. Governing Law. This Agreement shall be construed in accord with
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and governed by the laws of the State of New Jersey.
18. Knowing and Voluntary Signing. Xx. Xxxxxxxx acknowledges that he
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is represented by counsel, that counsel has explained to him all the terms of
this Separation Agreement, and that he has voluntarily signed it, intending it
to legally bind him. Exide, by its President, acknowledges that it is
represented by counsel, that counsel has explained to it all the terms of this
Separation Agreement, and that Exide has voluntarily signed it, intending it to
legally bind Exide.
EXIDE CORPORATION
/s/ Xxxx X. Xxxxxxxx By: /s/Xxxxxx X. Xxxxxx
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Xxxx X. Xxxxxxxx For the Board of Directors
August 14, 1998 August 31, 1998
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Dated Dated
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