EXHIBIT 10.1
C&D CHARTER POWER SYSTEMS, INC.
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
August 15, 1995
Xxxxxxx X. Xxxxxxx, Esq.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
C&D Charter Power Systems, Inc., a Delaware corporation
(the "Company"), agrees to employ you, and you agree to accept
such employment, under the following terms and conditions:
1. Term of Employment.
1.1 Except for earlier termination as is provided in
Section 10 below, your employment under this
Agreement shall be for a term (the "Initial Term")
commencing on August 1, 1995 (the "Effective Date")
and terminating on July 31, 1996.
1.2 This Agreement shall be automatically renewed for
successive terms of one month each, unless either
party shall have given to the other party at least
30 days' prior written notice of the termination of
this Agreement. If such 30 days' prior written
notice is given by either party, (i) 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, but (ii) all other
obligations each of you and the Company have to the
other, including the Company's obligation to pay
your compensation and make available the medical and
dental insurance which you are entitled hereunder,
August 15, 1995
Page 2
shall continue until the date your employment
terminates as specified in such notice.
2. Compensation.
2.1 You shall be compensated for all services rendered
by you under this Agreement at the rate of $120,000
per annum (such salary, as it is from time to time
adjusted, is herein referred to as the "Base
Salary"). Such Base Salary shall be payable in
periodic installments twice monthly in accordance
with the Company's payroll practices for salaried
employees. The Compensation Committee of the Board
of Directors shall review such Base Salary prior to
April 30, 1996 and each year thereafter during the
term of this Agreement, including any renewal term,
and shall make such adjustments, if any, as the
Compensation Committee shall determine; provided,
however, that no adjustment shall reduce the Base
Salary below $120,000.
2.2 If your employment hereunder shall be terminated (i)
by the Company without Cause (as defined in Section
10.3) therefor having been given to you (other than
pursuant to Sections 10.1 or 10.2), or (ii) as a
result of the non-renewal of this Agreement by the
Company upon expiration of the Initial Term or any
renewal term, then for a one year period after the
effective date of such termination the Company shall
pay you at the rate of your Base Salary in effect at
the time of such termination.
3. Duties.
3.1 During the term of your employment hereunder,
including any renewal thereof, you agree to serve as
the Vice President-Corporate Services and Corporate
Counsel or in such other capacity with duties and
August 15, 1995
Page 3
responsibilities of a similar nature as those
initially undertaken by you hereunder as the
President 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, in a manner appropriate to the Company
for the times and circumstances for which the change
is to be made. You also agree to perform such other
services and duties consistent with the office or
offices in which you are serving as its
responsibilities as may from time to time be
prescribed by the Board of Directors, and you also
agree to serve, if elected 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 to the by-laws of each such
corporation. Unless you otherwise agree, you will
not be required to relocate from the Company's
headquarters in the Plymouth Meeting, Pennsylvania
area.
3.2 You shall devote your full employment energies,
interest, abilities, time and attention during
normal business hours (excluding the vacation
periods provided in Section 4.2 below) exclusively
to the business and affairs of the Company, its
parent corporation and subsidiaries, if any, and
shall not engage in any activity which conflicts or
interferes with the performance of duties hereunder.
3.3 You agree to cooperate with the Company, including
taking such reasonable medical examinations as may
be necessary, in the event the Company shall desire
or be required (such as pursuant to the terms of any
bank loan or any other agreement) to obtain life
insurance insuring your life.
3.4 You shall, except as otherwise provided herein, be
subject to the Company's rules, practices and
policies applicable to the Company's senior
executive employees. Without limiting the
August 15, 1995
Page 4
generality of the foregoing, you shall, with respect
to the Company and its parents, subsidiaries, assets
and stockholders, act in a manner consistent with
your fiduciary responsibilities as an executive of
the Company.
4. Benefits.
4.1 You shall have the benefit of such life and medical
insurance, bonus, stock option and other similar
plans as the Company may have or may establish from
time to time, and in which you would be entitled to
participate, by reason of your position with the
Company, pursuant to the terms thereof. Also, to
the extent you have met the qualifications required,
you may participate in the Company's Savings and
Retirement plans. 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.
4.2 You shall be entitled to a vacation of four weeks
each year.
4.3 The Company will provide you with an annual physical
examination.
5. Working and Other Facilities.
During the Initial Term of this Agreement and any
renewal term thereof, you shall be furnished with
such working facilities and other services as are
suitable to your position and adequate for the
performance of your duties.
6. Expenses.
August 15, 1995
Page 5
The Company will reimburse you for reasonable
expenses (consistent with Company policy), including
traveling expenses, incurred by you in connection
with the business of the Company, upon the
presentation by you of appropriate substantiation
for such expenses.
7. Restrictive Covenants.
7.1 During such time as you shall be employed by the
Company, and for a period of one year 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,
agent of or consultant for, any business which is
competitive with the business in which the Company
is engaged at the time your employment with the
Company ceases (a "Competitive Business").
7.2 During such time as you shall be employed by the
Company, and for a period of one year thereafter or
for such longer period as may be required by
applicable ethical standards, you shall not, without
the written consent of the Board of Directors,
represent any client in any matter (an "Adverse
Matter") which is adverse to (i) the Company, (ii)
any of its subsidiaries or (iii) to the extent
arising out of or related to their position with the
Company, any officers, directors or employees of the
Company or any of its subsidiaries. For purposes of
this Agreement, the term "Adverse Matter" includes,
but is not limited to, (a) judicial or
administrative proceedings and positions taken
therein, (b) transactions and other contractual
matters and (c) the provision of advisory or other
services.
August 15, 1995
Page 6
7.3 Nothing herein (i) shall prevent you from investing
without limit in the securities of any company
listed on a national securities exchange or quoted
on the NASDAQ quotation system, provided that your
involvement with any such company is solely that of
a stockholder, or (ii) is intended to prevent you
from being employed during the one-year period
following the termination of your employment with
the Company referred to herein by any business other
than a Competitive Business or by any client other
than with respect to an Adverse Matter. Nothing
herein shall limit any ethical standard otherwise
applicable to you.
7.4 The parties hereto intend that the covenant
contained in this Section 7 shall be deemed a series
of separate covenants for each state, county and
city. If, in any judicial proceeding, a court shall
refuse to enforce all the separate covenants deemed
included in this Section 7, because, taken together,
they cover too extensive a geographic area, the
parties intend that those of such covenants (taken
in order of the states, counties and cities therein
which are least populous), which, if eliminated,
would permit the remaining separate covenants to be
enforced in such proceeding, shall, for the purpose
of such proceeding, be deemed eliminated from the
provisions of this Section 7.
8. Confidentiality, Non-Interference, Inventions and
Proprietary Information.
8.1 Confidentiality. In the course of your employment
by the Company hereunder and prior hereto, you will
have and have had access to confidential or
proprietary data or information of the Company. You
will not at any time divulge or communicate to any
person nor shall you direct any Company employee to
August 15, 1995
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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 any of such data
or information. The provisions of this Section 8.1
shall survive your employment hereunder, whether by
the normal expiration thereof or otherwise. The
term "confidential or proprietary data or
information" as used in this Agreement shall mean
information not generally available to the public,
including, without limitation, personnel
information, financial information, customer lists,
supplier lists, product and tooling specifications,
trade secrets, product composition and formulae,
tools and dies, drawings and schematics,
manufacturing processes, knowhow, computer and any
other processed or collated data, computer programs,
pricing, marketing and advertising data.
8.2 Non-Interference. You agree that you will not at
any time after the termination of your employment by
the Company, for your own account or for the account
of any other person, interfere with the Company's
relationship with any of its suppliers, customers or
employees; provided that your employment by a
competitor of the Company or retainer by a client,
if not in violation of your agreements contained in
Article 7 above, and your contacting of suppliers
and customers in connection therewith, if not in
violation of Section 8.1 above or Sections 8.3 or
8.4 below, shall not constitute "interference"
hereunder.
8.3 Inventions. It is understood that you may, during
your employment, conceive or develop certain
inventions, innovations or discoveries related to
any business in which the Company may be engaged,
either solely or jointly with others. In connection
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with the conception or development thereof, you
agree to disclose promptly to the Company all such
inventions, innovations and discoveries, to assign,
and hereby do assign, to the Company all of your
right, title and interest in and to said inventions,
innovations and discoveries, and to do all things
and sign all documents deemed by the Company to be
necessary or appropriate to vest in it, its
successors and assigns, all of your right, title and
interest in and to such inventions, innovations or
discoveries, and to procure for it, at the Company's
expense, patents, copyrights and/or trademarks
covering such inventions, innovations or discoveries
in the United States and its possessions and in
foreign countries, at the discretion and under the
direction of the Company. In the event the Company
is unable for any reason to obtain your signature on
such documents, you irrevocably appoint the Company
and its duly authorized officers and agents as your
agents and attorneys-in-fact to execute such
documents and to do such things with the same legal
force and effect as if executed or done by you.
8.4 Return of Property. All written 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 request of the Company during
your employment, you shall promptly deliver the same
to the Company. In addition, upon termination of
your employment, or upon request of the Company
during your employment, you shall promptly deliver
the same to the Company. In addition, upon
termination of your employment, or upon request of
the Company during your employment, you will deliver
August 15, 1995
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to the Company all other Company property in your
possession or under your control, including, but not
limited to, financial statements, marketing and sale
data, patent applications, drawings and other
documents, and all Company credit cards and
automobiles.
9. Equitable Relief. With respect to the covenants
contained in Articles 7 and 8 of this Agreement, you
agree that any remedy at law for any breach of said
covenants may be inadequate and that the Company shall be
entitled to specific performance or any other mode of
injunctive and/or other equitable relief to enforce its
rights hereunder or any other relief a court might award.
10. Earlier Termination. Your employment hereunder shall
terminate prior to the Initial Term (or any renewal term,
in the event of renewal) on the following terms and
conditions:
10.1 This Agreement shall terminate automatically on the
date of your death. Notwithstanding the foregoing,
if you die during the term of this Agreement, the
Company shall (i) continue to make payments to your
estate of your Base Salary as then in effect
pursuant to this Agreement for six (6) months after
your death, and (ii) pay your estate any
reimbursable expenses which otherwise would have
been paid to you to the date of your death.
10.2 This Agreement shall be terminated if you are unable
to perform your duties hereunder for a period of any
180 days in any 365 consecutive day period by reason
of physical or mental disability. Notwithstanding
the foregoing, if this Agreement is terminated
pursuant to this Section, the Company shall pay any
accrued but unpaid Base Salary through the date of
termination and any reimbursable expenses due to you
hereunder. For purposes of this Agreement "physical
August 15, 1995
Page 10
or mental disability" shall mean your inability, due
to health reasons, to discharge properly your duties
of employment, supported by the opinion of a
physician satisfactory to both you and the Company.
If the parties do not agree on a physician mutually
satisfactory to both you and the Company within ten
days of 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. 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.
10.3 This Agreement shall terminate immediately upon the
Company's sending you written notice terminating
your employment hereunder for Cause. The Company
may terminate this Agreement for Cause, but only
after written notice specifying the Cause of such
action shall have been rendered to you by the
President of the Company. "Cause" shall mean any of
the following:
(i) Breach of this Agreement.
(ii) Refusal or inability (other than pursuant to
Sections 10.1 or 10.2) to perform duties
assigned in accordance with the terms of
this Agreement or overt and willful
disobedience of orders or directives issued
to you by the Company and within the scope
of your duties to the Company.
(iii) Willful misconduct in the performance of
your duties, functions and responsibilities.
August 15, 1995
Page 11
(iv) Commission of acts which are illegal in
connection with the performance of your
duties, functions and responsibilities under
this Agreement.
(v) Commission of acts which would constitute a
felony offense during the term of this
Agreement.
(vi) Violation of Company rules and regulations
concerning conflict of interest.
(vii) Gross mismanagement of the assets of the
Company.
(viii) Gross incompetence, gross insubordination or
gross neglect in the performance of your
duties hereunder or being under the habitual
influence of alcohol while on duty or
possession, use, manufacture, distribution,
dispensation or sale of illegal drugs while
on or off duty.
(ix) Any act or omission, whether or not included
in the foregoing, that a court of competent
jurisdiction would determine to constitute
cause for termination.
If the Company terminates this Agreement for Cause
under this Section, the Company shall not be
obligated to make any further payments under this
Agreement except for amounts due at the time of such
termination.
Existence of Cause shall be conclusively determined
for all purposes hereunder by the President of the
Company. Such advice and consultation shall be
utilized as such officer regards as appropriate, and
August 15, 1995
Page 12
no obligation or duty with respect to any procedure
or formality is created by this Agreement.
11. Post-Employment Benefits Coverage.
11.1 Your coverage under the benefits program provided by
the Company will cease effective on your termination
date. You will be entitled to elect continuation of
your medical and dental benefits at the same cost
the Company pays, pursuant to the provisions of the
Consolidated Omnibus Budget Reconciliation Act
(COBRA). Details with regard to COBRA continuation
coverage will be provided to you shortly after your
termination date.
11.2 Life Insurance coverage will cease upon your
termination date. You may, however, apply to
General American Life Insurance Company (or such
other insurance company as may provide group life
insurance to the Company's employees at the time)
for an individual converted life policy, with such
application and payment of the first premium
required to be accomplished within 31 days after
your termination date. Details regarding this
conversion option will be provided to you shortly
after your termination date.
11.3 Accidental Death and Dismemberment and Long Term
Disability coverages cease with your termination
date and may not be extended or converted.
12. Termination of Prior Agreements; Modification. This
Agreement constitutes the full and complete understanding
of the parties, and will, on the Effective Date,
supersede all prior agreements and understandings, oral
or written, between the parties. This Agreement may not
be modified or amended except by an instrument in writing
August 15, 1995
Page 13
signed by the party against which enforcement thereof may
be sought.
13. Entire Agreement. Each party to this Agreement
acknowledges that no representations, inducements,
promises or agreements, oral or written, have been made
by either party or anyone acting on behalf of either
party, which are not embodied herein and that no other
agreement, statement or promise not contained in this
Agreement shall be valid or binding.
14. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the
extent of such 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.
15. Waiver of Breach. The waiver by either party of a breach
of any provision of this Agreement shall not operate as
or be construed as a waiver of any subsequent breach.
16. Notices. All notices hereunder shall be in writing and
shall be sent by express mail or by certified or
registered mail, postage prepaid, return receipt
requested; if to you, to your residence as listed in the
Company's records; and if to the Company, to the address
set forth above with copies to the President.
17. Assignability; Binding Effect. This Agreement shall not
be assigned by you without the written consent of the
Board of Directors of the Company. 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 of the Company,
its successors and assigns.
August 15, 1995
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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. Headings. The headings of this Agreement are intended
solely for convenience of reference and shall be given no
effect in the construction or interpretation of this
Agreement.
August 15, 1995
Page 15
If this Agreement correctly sets forth our
understanding, please sign the duplicate original in the space
provided below and return it to the Company, whereupon this shall
constitute the employment agreement between you and the Company
effective and for the term as stated herein.
C&D CHARTER POWER SYSTEMS, INC.
By \s\ Xxxxxx Xxxxx
Xxxxxx Xxxxx
President
Agreed as of the date
first above written:
\s\ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
