Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of the 13st day of August 2001, by and
between Exide Technologies (the "Company"), and Xxxx X. Xxx Xxxx (the
"Executive").
WHEREAS, the Company wishes to employ the Executive and the Executive
wishes to be employed by the Company.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Employment Term. The "Employment Term" shall commence on the date first
written above (the "Effective Date") and, unless previously terminated in
accordance with Section 7 hereof, shall expire on the second anniversary of the
Effective Date. The Employment Term shall automatically be extended for one (1)
year on each anniversary of the Effective Date unless either the Company or the
Executive shall have given written notice to the other at least ninety (90) days
prior thereto that the Employment Term shall not be so extended.
2. Employment.
(a) Subject to the provisions of Section 7 hereof, the Company
agrees to continue to employ the Executive and the Executive agrees to remain in
the employ of the Company during the Employment Term. During the Employment
Term, the Executive shall be employed as the Executive Vice President, General
Counsel and Secretary of the Company or in such other senior executive capacity
as may be mutually agreed to in writing by the parties. The Executive shall
perform the duties, undertake the responsibilities and exercise the authority
customarily performed, undertaken and exercised by persons situated in a similar
executive capacity. He shall also promote, by entertainment or otherwise, the
business of the Company.
(b) During the Employment Term, excluding periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote
his full business time to the business and affairs of the Company to the extent
necessary to discharge the responsibilities assigned to be Executive hereunder.
The Executive may (1) serve on corporate, civil or charitable boards or
committees and (2) manage personal investments so long as such activities do not
significantly interfere with the performance of the Executive's responsibilities
hereunder. It is expressly understood and agreed that to the extent that any
such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
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3. Compensation.
(a) Base Salary. During the Employment Term, the Company agrees to
pay or cause to be paid to the Executive an annual base salary of $300,000 or as
may be increased from time to time (the "Base Salary"). Such Base Salary shall
be payable in accordance with the Company's customary practices applicable to
its executives.
(b) Annual Bonus. In addition to Base Salary, the Executive shall be
eligible to receive, with respect to each fiscal year ending during the
Employment Term, an annual bonus (the "Annual Bonus") under the terms of the
Company's then applicable annual bonus plan. The Executive's Annual Bonus shall
have a target amount equal to 60% of his Base Salary.
(c) Long-Term Incentives. During the Employment Term, the Executive
shall be eligible to receive such long-term incentives (e.g., stock options and
restricted stock) as shall be determined by the Company's Board of Directors
(the "Board") in its sole discretion.
4. Employee Benefits. During the Employment Term, the Executive shall be
entitled to participate in all employee benefit plans, practices and programs
maintained by the Company and made available to senior executives generally,
including, without limitation, all pension, retirement, supplemental retirement,
profit sharing, savings, medical, hospitalization, disability, dental, life or
travel accident insurance benefit plans. Unless otherwise provided herein, the
compensation and benefits under, and the Executive's participation in, such
plans, practices and programs shall be on the same basis and terms as are
applicable to senior executives of the Company generally.
5. Vacation and Sick Leave.
(a) The Executive shall be entitled to annual vacation in accordance
with the policies as periodically established by the Board for similarly
situated executives of the Company.
(b) The Executive shall be entitled to sick leave (without loss of
pay) in accordance with the Company's policies as in effect from time to time.
6. Termination. During the Employment Term, the Executive's employment
hereunder may be terminated under the following circumstance:
(a) Cause. The Company may terminate the Executive's employment for
"Cause." For purposes of this Agreement "Cause" shall mean:
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(i) the failure by the Executive to substantially perform the
Executive's duties with the Company (other than any such failure resulting from
the Executive's incapacity due to physical or mental illness) after a written
demand for substantial performance is delivered to the Executive by the Board,
which demand specifically identifies the manner in which the Board believes that
the Executive has not substantially performed the Executive's duties, (ii) the
willful engaging by the Executive in conduct which is demonstrably and
materially injurious to the Company or its Affiliates, monetarily or otherwise
or (iii) a breach of any of the Executive's covenants set forth in Section 10
hereof. For purposes of clauses (i) and (ii) of this definition, no act, or
failure to act, on the Executive's part shall be deemed "willful" unless done,
or omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's act, or failure to act, was in the best interest of
the Company.
(b) Disability. The Company may terminate the Executive's employment
after having established the Executive's Disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity which impairs the
Executive's ability to substantially perform his or her duties under this
Agreement for six (6) consecutive months. The Executive shall be entitled to the
compensation and benefits provided for under this Agreement for any period
during the Employment Term and prior to the establishment of the Executive's
Disability during which the Executive is unable to work due to a physical or
mental infirmity. Notwithstanding anything contained in this Agreement to the
contrary, until the Termination Date specified in a Notice of Termination (as
each term is hereinafter defined) relating to the Executive's Disability, the
Executive shall be entitled to return to his or her position with the Company as
set forth in this Agreement in which event no Disability of the Executive will
be deemed to have occurred.
(c) Good Reason. The Executive may terminate his employment
hereunder for "Good Reason." For purposes of this Agreement, "Good Reason" shall
mean the occurrence of any of the following events or conditions without the
Executive's prior written consent:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which represents a
materially adverse change from his other status, title, position or
responsibilities as in effect immediately prior thereto;
(ii) a reduction in the Executive's Base Salary;
(iii) the failure of the Company to obtain from its Successors
or Assigns the express assumption and agreement required under Section 12
hereof; or
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(iv) any purported termination of the Executive's employment
by the Company which is not effected pursuant to a Notice of Termination
satisfying the terms set forth in the definition of Notice of Termination.
(d) Voluntary Termination. The Executive may voluntarily terminate
his or her employment hereunder at any time by providing ninety (90) days'
written notice of termination to the Company. In addition, the Company may
voluntarily terminate the Executive's employment hereunder without Cause at any
time by providing ninety (90) days' written notice of such termination to the
Executive.
7. Compensation Upon Termination. Upon termination of the Executive's
employment during the Employment Term, the Executive shall be entitled to the
benefits set forth below. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Executive in any subsequent employment
except as provided in Section 7(b)(iii).
(a) If the Executive's employment with the Company shall be
terminated (1) by the Company for Cause, death or Disability or (2) by the
Executive voluntarily other than for Good Reason, the Company shall pay the
Executive all amounts earned or accrued through the Termination Date but not
paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement
for reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date, (iii) vacation pay,
and (iv) sick leave (collectively, "Accrued Compensation"). In addition to the
foregoing, if the Executive's employment is terminated by the Company for
Disability or by reason of the Executive's death, the Company shall pay to the
Executive or his or her beneficiaries an amount equal to the "Pro Rata Bonus"
(as hereinafter defined). The "Pro Rata Bonus" is an amount equal to the
Executive's target bonus under the Company's annual bonus plan ("Target Bonus")
multiplied by a fraction the numerator of which is the number of days in such
fiscal year through the Termination Date and the denominator of which is 365.
The Executive's entitlement to any other compensation or benefits shall be
determined in accordance with the Company's employee benefit plans and other
applicable programs and practices then in effect. All amounts provided for in
this Section 7(a) shall be paid to the Executive in a lump sum within ten (10)
business days of the Termination Date.
(b) If the Executive's employment with the Company shall be
terminated, (1) by the Company other than for Cause, death or Disability or (2)
by the Executive for Good Reason, the Executive shall be entitled, upon
execution of a release in a form reasonably acceptable to the Company, to the
following:
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(i) the Company shall pay the Executive all Accrued
Compensation and a Pro-Rata Bonus in a lump sum within ten (10) business days of
the Termination Date;
(ii) for twenty-four (24) months from the Termination Date
(the "Continuation Period"), the Company shall pay the Executive, Base Salary
and Annual Bonus.
(iii) for the "Continuation Period", the Company shall at its
expense continue on behalf of the Executive and his or her dependents and
beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits provided to the Executive prior to the Termination
Date. The coverage and benefits (including deductibles and costs) provided in
this Section 7(iii) during the Continuation Period shall be no less favorable to
the Executive and his or her dependents and beneficiaries, than the most
favorable of such coverages and benefits provided during the Employment Term.
The Company's obligation hereunder with respect to the foregoing benefits shall
be limited to the extent that the Executive obtains any such benefits pursuant
to a subsequent employer's benefit plans, in which case the Company may reduce
the coverage of any benefits it is required to provide the Executive hereunder
so long as the aggregate coverages and benefits of the combined benefit plans is
no less favorable to the Executive than the coverages and benefits required to
be provided hereunder. This subsection (iii) shall not be interpreted so as to
limit any benefits to which the Executive, his or her dependents or
beneficiaries may otherwise be entitled under any of the Company's employee
benefit plans, programs or practices following the Executives termination of
employment, including without limitation, retiree medical and life insurance
benefits; and
(iv) notwithstanding any plan or agreement to the contrary,
upon a termination pursuant to this Section 7(b): any unvested stock options
under any applicable Company plan shall vest and the Executive will have an
extended post-termination period to exercise these options of twenty-four (24).
(v) professional outplacement services
8. Exclusivity of Severance Payments Hereunder.
The severance pay and benefits provided for in this Agreement shall
be in lieu of (i) any other severance pay to which the Executive may be entitled
under any Company severance plan, program or arrangement. The severance pay and
benefits provided for in this Agreement shall be reduced by an amount equal to
any payment the Executive is entitled to receive from the Company in connection
with his termination of employment (including, without limitation, pay in lieu
of notice) pursuant to any governmental law, rule or regulation.
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9. Interaction with Change in Control Agreement.
If a Change of Control (as defined in the Executive's Change in
Control Agreement with the Company) occurs during both the Term of the
Executive's Change in Control Agreement and the Employment Term, this Agreement
shall be tolled for the remainder of the Term of the Executive's Change in
Control Agreement. If, prior to a Change in Control the Executive's employment
is terminated in circumstances entitling him to payments and benefits under both
this Agreement and his Change in Control Agreement, he shall only be entitled to
receive the payments and benefits provided for under his Change in Control
Agreement.
10. Covenants of the Executive.
(a) Ownership and Return of Documents. The Executive agrees that all
memoranda, notes, records, papers or other documents and all copies thereof
relating to the operations or business of the Company, some of which may be
prepared by the Executive, and all objects associated therewith in any way
obtained by the Executive shall be the Company's property. The Executive shall
not, except for the Company's use, copy or duplicate any of the aforementioned
documents or objects, nor remove them from the Company's facilities nor use any
information concerning them except for the Company's benefit, either during the
Executive's employment or thereafter. The Executive agrees that the Executive
will deliver all of the aforementioned documents and objects that may be in his
or her possession to the Company upon termination of the Executive's employment,
or at any other time on the Company's request.
(b) Confidential Information In connection with his employment at
the Company, the Executive will have access to Trade Secrets. During and after
his employment by the Company, regardless of the reasons that such employment
ends, the Executive agrees:
(i) To hold all Trade Secrets in confidence and not discuss,
communicate or transmit to others, or make any unauthorized copy of or use the
Trade Secrets in any capacity, position or business except as it directly
relates to the Executive's employment by the Company;
(ii) To use the Trade Secrets only in furtherance of proper
employment related reasons of the Company to further the interests of the
Company;
(iii) To take all reasonable actions that the Company deems
necessary or appropriate to prevent unauthorized use or disclosure of or to
protect the interest of the Company in the Trade Secrets; and
(iv) That any of the Trade Secrets, whether prepared by the
Executive or which may come into the Executive's possession during the
Executive's
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employment hereunder, are and remain the property of the Company, and all such
Trade Secrets, including copies thereof, together with all other property
belonging to any of the Company or its Affiliates, or used in its respective
businesses, shall be delivered to or left with the Company.
This Agreement does not apply to (A) information that by means other than
the Executive's deliberate or inadvertent disclosure becomes well known to the
public; or (B) disclosure compelled by judicial or administrative proceedings
after the Executive diligently tries to avoid each disclosure and affords the
Company the opportunity to obtain assurance that compelled disclosures will
receive confidential treatment.
(c) Non-Competition. By and in consideration of the Company's
entering into this Agreement and the compensation and benefits to be provided by
the Company hereunder, and further in consideration of the Executive's exposure
to the proprietary information of the Company and its Affiliates, the Executive
agrees that he will not, during the Employment Term and if his employment
hereunder is terminated (a) by the Company for Cause or Disability or (b) by him
other than for Good Reason, for a period of two (2) years thereafter, directly
or indirectly, own, manage, operate, join, control, be employed by, or
participate in the ownership, management, operation or control of, or be
connected in any manner, including, without limitation, holding the position of
shareholder, director, officer, consultant, independent contractor, employee,
partner, or investor, with any Competing Enterprise. For purposes of this
paragraph, the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in a business in the United States which is
in competition, directly or indirectly, with any of the businesses of the
Company or any of its Affiliates as of the Termination Date. Notwithstanding the
foregoing, the Executive may invest in stocks, bonds or other securities of any
venture or entity if (1) such stocks, bonds or securities are listed on any
national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934 and (2) his investment does not
exceed five (5) percent of the issued and outstanding shares, or, in the case of
other securities, five (5) percent of the aggregate principal amount thereof
issued and outstanding.
(d) Non-Solicitation. During the Employment Term and for a period of
two (2) years thereafter, the Executive shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company (other than
pursuant to general, non-targeted public media advertisements), any person who
is or was an employee or customer of the company or who otherwise had a material
business relationship with the Company.
11. Definitions. In addition to other terms defined herein, the following
terms shall be defined as follows:
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"Affiliate" shall mean any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by operation
of law or otherwise.
"Notice of Termination" shall mean a written notice of termination
of the Executive's employment, signed by the Executive if to the Company or by a
duly authorized officer of the Company if to the Executive, which indicates the
specific termination provision in this Agreement, if any, relied upon and which
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated. Any purported termination by the Company or by the Executive shall be
communicated by written Notice of Termination to the other. For purposes of this
Agreement, no such purported termination of employment shall be effective
without such Notice of Termination.
"Subsidiary" shall mean any corporation or other entity in which the
Company has a direct or indirect ownership interest of 50% or more of the total
combined voting power of the then outstanding securities or interests of such
corporation or other entity entitled to vote generally in the election of
directors or in which the company has the right to receive 50% or more of the
distribution of profits or 50% or the assets on liquidation or dissolution.
"Successors and Assigns" shall mean, respect to the Company, a
corporation or other entity acquiring all or substantially all the assets and
business of the Company, as the case may be (including this Agreement), whether
by operation of law or otherwise.
"Termination Date" shall mean (a) in the case of the Executive's
death, his date of death, (b) if the Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given (provided that
the Executive shall not have returned to the performance of his duties on a
full-time basis during such thirty (30) day period) and (c) if the Executive's
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a termination for Cause shall not be less
than thirty (30) days, and in the case of a termination for Good Reason shall
not be less than ninety (90) days, from the date such Notice of Termination is
given); provided, however, that if within thirty (30) days after any Notice of
Termination is given the party receiving such Notice of Termination in good
faith notifies the other party that a dispute exists concerning the basis for
the termination, the Termination Date shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, or by the
final judgment, order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been taken).
Notwithstanding the pendency of any such dispute, the Company shall continue to
pay the Executive his or her Base Salary and continue the Executive as a
participant in all compensation, incentive, bonus, pension, profit sharing,
medical, hospitaliza-
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tion, dental, life insurance and disability benefit plans in which he or she was
participating when the notice giving rise to the dispute was given, until the
dispute is finally resolved in accordance with this Section whether or not the
dispute is resolved in favor of the Company, and the Executive shall not be
obligated to repay to the Company any amounts paid or benefits provided pursuant
to this sentence.
"Trade Secrets" shall mean any of the following:
"Financial Information," including, but not limited to,
information relating to earnings, assets, debts, prices, pricing structure,
volume of purchases or sales or other financial data whether related to the
Company generally, or to particular products, services, geographic areas, or
time periods;
"Supply and Service Information," including, but not limited
to, information relating to goods and services, suppliers' names or addresses,
terms of supply or service contracts or of particular transactions, or related
information about potential suppliers, and the extent that the combination of
suppliers or use of a particular supplier, though generally known or available,
yields advantages to the Company, details of which are not generally known;
"Marketing Information," including, but not limited to,
information relating to details about ongoing or proposed marketing programs or
agreements by or on behalf of the Company, sales forecasts, advertising formats
and methods or results of marketing efforts or information about impending
transactions;
"Personal Information," including, but not limited to,
information relating to employees' personal or medical histories, compensation
or other terms of employment actual or proposed promotions, hirings,
resignations, disciplinary actions, terminations or reasons therefor, training
methods, performance, or other employee information; and
"Customer Information," including, but not limited to,
information relating to past, existing or prospective customers, their addresses
or backgrounds, records of agreements and prices, proposals or agreements
between customers and the Company, status of customers' accounts or credit, or
related information about actual or prospective customers as well as customer
lists.
12. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company and its Successors and Assigns, and the Company shall
require any Successor or Assign to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. The
term "Company" as used herein shall include such Successors and Assigns.
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(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his or her beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal personal representative.
13. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communication shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
14. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company or any of its
subsidiaries and for which the Executive may qualify, nor shall anything herein
limit or reduce such rights as the Executive may have under any other agreements
with the Company or any of its subsidiaries. Amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any plan or
program of the Company or any of its subsidiaries shall be payable in accordance
with such plan or program, except as explicitly modified by this Agreement.
15. Set-off. The Company's obligations hereunder shall not be affected by
any circumstances, including, without limitation, any set-off, counterclaim,
defense, recoupment, or other right which the Company may have against the
Executive or others.
16. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver or similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
17. Withholding Taxes. The Company may withhold from all payments due to
Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
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18. Employment with Subsidiaries. Employment with the Company for purposes
of this Agreement shall include employment with any Subsidiary.
19. Each Party the Drafter. This Agreement and the provisions contained in
it shall not be construed or interpreted for or against any party to this
Agreement because that party drafted or caused that party's legal representative
to draft any of its provisions.
20. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
21. Section and Headings. The division of this Agreement into sections and
the insertion of headings are for the convenience of reference only and shall
not affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular section or other portion hereof. Unless
something in the subject matter or context is inconsistent therewith, references
to sections and clauses are to sections and clauses of this Agreement.
22. Number. In this Agreement, words importing the singular number only
shall include the plural and vice versa, and words importing the masculine
gender shall include the feminine and neuter genders and vice versa, and words
importing persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
23. Independent Advice. The Company and the Executive acknowledge and
agree that they have each obtained independent legal advice in connection with
this Agreement and they further acknowledge and agree that they have read,
understand and agree with all of the terms hereof and that they are executing
this Agreement voluntarily and in good faith.
24. Copy of Agreement. The Executive hereby acknowledges receipt of a copy
of this Agreement duly signed by the Company.
25. Termination Prior to Effective Date. In the event of a termination of
employment of the Executive prior to the Effective Date, this Agreement shall be
terminated and shall have no further force or effect.
26. Currency. All dollar amounts set forth or referred to in this
Agreement refer to U.S. currency.
27. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without giving
effect to the conflict of law principles thereof. Any action brought by any
party of
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this Agreement shall be brought and maintained in a court of competent
jurisdiction in Xxxxxx County of the State of New Jersey.
28. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
29. Entire Agreement. This Agreement and the Executive's Change in Control
Agreement constitute the entire agreement between the parties hereto and
supersedes all prior agreements, if any, understandings and arrangements, oral
or written, between the parties hereto with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by it duly authorized officer and the Executive has executed this Agreement as
of the day and year first above written.
EXIDE TECHNOLOGIES
By: ____________________________________
Chairman and CEO:
Xxxxxx X. Xxxx
WITNESS:
By:___________________________
Xxxxx X. Xxxxxxxxx
ATTEST:
By:___________________________
Assistant Secretary:
Xxxxx X. Israel
By: ____________________________________
Xxxx X. Xxx Xxxx
WITNESS:
By:___________________________
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