Exhibit 10.23
EMPLOYEE SEPARATION AGREEMENT
This is an Employee Separation Agreement ("Agreement") between Xxxxx
X. Xxxxx ("Xx. Xxxxx") and C & D Technologies, Inc. (referred to herein as "C &
D" or "Company") setting forth the terms of separation from employment of Xx.
Xxxxx as an officer of C & D.
WITNESSETH
WHEREAS, Xx. Xxxxx is the Vice President, Strategic Business Alliances
for the Powercom Division of C & D;
WHEREAS, Xx. Xxxxx and C&D are parties to that certain employment
agreement dated August 1, 1997 (the "Employment Agreement"); and
WHEREAS, C&D advised Xx. Xxxxx that it had elected not to renew the
Employment Agreement;
WHEREAS, Xx. Xxxxx requested from C&D and C&D has agreed to grant Xx.
Xxxxx certain accommodations, set forth herein, which Xx. Xxxxx acknowledges
that C&D is not required to grant; and
WHEREAS, C & D and Xx. Xxxxx desire to settle and resolve the terms of
the separation from employment of Xx. Xxxxx as an officer of C & D and to fully
and finally settle all differences between them.
NOW, THEREFORE, Xx. Xxxxx and C & D, intending to be legally bound and
in consideration of the mutual promises set forth below, hereby agree as
follows.
1. TERMS OF CONTINUATION AND TERMINATION OF EMPLOYMENT.
a. Xx. Xxxxx'x employment by C & D will terminate on the earlier
of (i) the date that Xx. Xxxxx becomes self-employed; (ii) the date on which Xx.
Xxxxx commences employment for any third party; or (iii) October 1, 2000
(hereinafter the "Effective Date"). C & D will characterize Xx. Xxxxx'x
termination as a mutual separation on the basis of a position elimination for
purposes of communications with third parties.
b. Xx. Xxxxx will be paid his regular salary through the Effective
Date. Xx. Xxxxx shall not be eligible to participate in the Management Incentive
Bonus Program for the Company's fiscal year 2001. Xx. Xxxxx shall receive an
award under the Management Incentive Bonus Program for the Company's fiscal year
2000 in the gross amount of $49,088, net of standard payroll and tax deductions,
at the same time as bonus awards are paid to program participants, generally.
Xx. Xxxxx shall not be eligible to receive any additional awards of stock
options under any of C&D's stock option plans.
c. Until the Effective Date, Xx. Xxxxx'x title shall be "Vice
President - Telecommunications Consulting." Xx. Xxxxx shall perform only such
job duties as may be communicated to him, in writing, by either of Xxxx X.
Xxxxxxx, Xx., Xxxxxx Xxxxxxx or the Board of Directors of C&D. Xx. Xxxxx shall
refrain from discussion with any employee, customer, supplier or any other party
with whom C&D has a commercial relationship regarding his employment or the
anticipated cessation thereof or the subject matter of this agreement without
the prior written consent of Xxxx X. Xxxxxxx, Xx., Xxxxxx Xxxxxxx or the C&D
Board of Directors, other than to say that the relationship between Xx. Xxxxx
and C&D is being terminated due to a position elimination.
2. TERMINATION OF EMPLOYMENT AGREEMENT.
The parties mutually agree that the Employment Agreement shall, as
of March 1, 2000, be null and void and of no force and effect.
3. PAYMENTS BY C & D.
C & D shall pay Xx. Xxxxx the sum of $50,000, less applicable
federal, state, and local payroll and other taxes ("Severance Pay") on or about
January 15, 2001, provided that Xx. Xxxxx complies with this Agreement, and
further provided that he executes a Release in the form attached hereto as
Exhibit A within thirty (30) days of the Effective Date.
4. FRINGE BENEFITS.
a. Xx. Xxxxx may continue to participate in the Company's medical,
dental, and life insurance programs through the Effective Date. Thereafter, Xx.
Xxxxx may continue, at his expense, his medical and dental insurance benefits to
the extent permitted by the Consolidated Omnibus Budget Reconciliation Act
("COBRA").
b. Xx. Xxxxx shall be paid for three (3) weeks vacation time banked
prior to December 31, 1999. Xx. Xxxxx will not receive pay in lieu of vacation
time that he would have been entitled to take from January 1, 2000 through the
Effective Date, and no additional vacation time shall accrue from January 1,
2000 through the Effective Date.
c. Until the Effective Date, Xx. Xxxxx may continue to participate
in the C & D Savings Plan and Pension Plan for salaried employees and the
Supplemental Executive Retirement Program in accordance with the terms of the
respective Plans.
d. Notwithstanding the terms of any stock option award agreements
or other agreement(s) between Xx. Xxxxx and the Company, Xx. Xxxxx may exercise,
in accordance with the terms of the applicable Stock Option Plan(s), only such
stock options which have vested or vest, in accordance with their terms, prior
to the Effective Date.
e. All other employee benefits not specifically continued by this
Agreement shall terminate on the Effective Date.
5. GENERAL RELEASE.
After having had a reasonable opportunity to review this Agreement and
an opportunity to consult with an advisor or an attorney of his choice, Xx.
Xxxxx, his heirs, administrators, and assigns, knowingly and voluntarily
releases, remises and forever discharges C & D, its subsidiary and related
companies, and each of their respective officers, directors, employees, agents
and attorneys and all those charged or chargeable with liability on their behalf
(collectively "Releasees"), from any and all rights or claims, of any nature
whatsoever which he has or may have against Releasees, including, but not
limited to those rights or claims arising out of or in any way connected with
Xx. Xxxxx'x employment by C & D or his separation from employment by C & D,
including, but not limited to claims for wrongful discharge, breach of
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contract, breach of the covenant of good faith, intentional or negligent
infliction of emotional distress, defamation, negligence, misrepresentation,
fraud, discrimination on the basis of race, color, religion, marital status,
national origin, handicap or disability, or veteran's status, including, but not
limited to all rights or claims under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. ss. 2000e-1, et seq., the Americans With Disabilities Act,
42 U.S.C. ss. 12101, et seq., and the Pennsylvania Human Relations Act, 43 P.S.
ss. 951 et seq., as well as any other claim arising under any other federal,
state, or local statute, ordinance, regulation, or common law that Xx. Xxxxx now
has or ever had against Releasees from the beginning of time to the date of this
Agreement. It is expressly understood and agreed that the foregoing is a general
release.
6. RELEASE OF AGE DISCRIMINATION CLAIMS.
After having had a reasonable opportunity to review this Agreement and
an opportunity to consult with an attorney or adviser of his choice, Xx. Xxxxx,
his heirs, administrators, and assigns, knowingly and voluntarily releases,
remises and forever discharges C & D Technologies, Inc., its subsidiary and
related companies, and each of their respective officers, directors, employees
and agents and all those charged or chargeable with liability on their behalf,
of and from any and all rights or claims which he may have against any of them
under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
ss. 621 et. seq. or under any other federal or state law prohibiting
discrimination based upon age, from the beginning of time to the date of this
Agreement.
7. COMPLIANCE WITH OLDER WORKERS BENEFIT PROTECTION ACT.
This Agreement is intended to comply with Section 201 of the Older
Workers Benefit Protection Act of 1990, 29 U.S.C. ss. 626(f). Accordingly, Xx.
Xxxxx acknowledges and represents as follows:
a. he waives all rights or claims against C & D under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. ss. 621, et seq.
("ADEA") knowingly and voluntarily in exchange for consideration of value to
which he is not otherwise entitled;
b. he has been advised in writing by C & D to consult with an
attorney in connection with this Agreement and his decision to waive his rights
or claims under the ADEA;
c. he has been given a period of at least twenty-one (21) days
within which to consider this Agreement and his decision to waive his rights or
claims under the ADEA; and
d. he has been informed by C & D and understands that he may
revoke this Agreement for a period of seven (7) days after signing it and that
this Agreement will not become effective or enforceable until after this seven
(7) day period has expired.
8. REVOCATION OF THIS AGREEMENT.
In the event that Xx. Xxxxx chooses to revoke his acceptance of this
Agreement, he will provide C & D with written notice of the revocation, which
shall be sent by United States mail, certified, return receipt requested,
post-marked within seven (7) days of the date that he signs this Agreement.
Notice to C & D shall be given to Xxxx Xxxxxx, Vice President - Human Resources.
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9. COVENANT NOT TO XXX.
Xx. Xxxxx agrees and covenants that he has not and will not bring any
action, or file any claims against C & D and its subsidiary and related
companies, or any of their respective officers, directors, employees or agents,
past and present, individually or collectively, which relates in any way to his
employment or his separation from employment by C & D.
10. NONDISCLOSURE OF INFORMATION.
Xx. Xxxxx acknowledges that he signed an "Agreement Relating to
Intellectual Property and Confidential Information" with C & D on December 16,
1996 ("Confidentiality Agreement"). A copy is attached to this Agreement as
Exhibit "1." Xx. Xxxxx reaffirms the obligations and duties he assumed under the
Confidentiality Agreement and agrees that he shall continue to abide by the
terms of the Confidentiality Agreement after the termination of his employment.
11. RETURN OF PROPERTY.
Xx. Xxxxx represents that he has returned to C & D or will return
prior to the Effective Date all materials in his possession or within his
control which relate to the business of C & D, including, but not limited to,
data, documents, reports, programs, diskettes, computer printouts, program
listings, computer hardware and/or software, memoranda, notes, records, reports,
plans, studies, price lists, customer lists, customer contact and other
information, and any and all similar information without regard to the form in
which it is maintained. Xx. Xxxxx acknowledges that all such materials are the
sole property of C & D and that he has no right, title, or other interest in or
to such materials. Xx. Xxxxx further agrees to return all Company credit cards,
computers, printers, telephones and any similar or dissimilar items.
12. NON-SOLICITATION OF EMPLOYEES AND CUSTOMERS.
a. Xx. Xxxxx agrees that beginning on the date hereof and for a
period of one (1) year from The Effective Date, he shall not, either directly or
indirectly, induce, suggest, encourage, entice, or solicit any employee of C & D
to leave the employ of C & D.
b. Xx. Xxxxx agrees that beginning on the date hereof and for a
period of one (1) year from the date of this Agreement, he will not, either
directly or indirectly or by acting in concert with others, solicit, influence,
or attempt to solicit or influence, any customers of C & D or any customer
prospects of C & D with whom Xx. Xxxxx had any contact during the two (2) year
period prior to his separation from employment by C & D to purchase from any
other person, partnership, corporation or other entity any products which are
the same, similar to or marketed as competitive with products sold by C & D.
13. NON-COMPETITION.
a. Xx. Xxxxx agrees that during such time as he shall be employed
by the Company, and for the applicable Restricted Period (as defined below)
thereafter, he 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 that, at the time
his employment with the Company ceases, is competitive with the business in
which the
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Company is engaged or in which the Company has taken affirmative steps to engage
(a "Competitive Business"); provided, however, that nothing herein (i) shall
prevent Xx. Xxxxx from investing without limit in the securities of any company
listed on a national securities exchange, provided that his involvement with any
such company is solely that of a stockholder, and (ii) is intended to prevent
him from being employed during the applicable Restricted Period by any business
other than a Competitive Business. The applicable Restricted Period shall be the
one-year period following the Effective Date.
b. The parties hereto intend that the covenant contained in
this Section 13 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 13, 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 13.
14. NO DISPARAGEMENT.
Xx. Xxxxx shall not at any time make any disparaging remarks about C &
D, its products, officers, directors or employees, nor shall C&D's officers or
directors at any time make disparaging remarks about Xx. Xxxxx.
15. ENFORCEMENT.
Xx. Xxxxx acknowledges that he has received sufficient consideration
for the covenants and restrictions contained in this Agreement including,
without limitation, those set forth in Sections 10, 12 and 13 of this Agreement;
that such restrictions are reasonable in time and scope, and are necessary for
the reasonable protection of the business of C & D. Xx. Xxxxx also acknowledges
that monetary damages would be an inadequate remedy for a breach by Xx. Xxxxx of
the promises contained in Sections 10, 12 and 13 of this Agreement and, if found
by a court of competent jurisdiction to have breached any of these restrictions,
consents to the entry of an order granting injunctive relief to prevent further
violations of those restrictions by Xx. Xxxxx. Xx. Xxxxx agrees that the time
period of the obligations set forth in Sections 10, 12 and 13 of this Agreement
shall be extended by any amount of time during which he is in violation of the
obligations set forth therein. Xx. Xxxxx also agrees that any award of
injunctive relief shall be in addition to, and in no way shall serve as, a
limitation on any and all other remedies C & D may have for enforcement of the
obligations set forth in Sections 10, 12 and 13 of this Agreement.
16. COOPERATION WITH C & D.
Xx. Xxxxx will fully cooperate with and assist C & D or any other
company affiliated with C & D in connection with its defense or prosecution of
any civil action or other legal proceeding involving C & D, of which C & D
believes Xx. Xxxxx has knowledge or information. This cooperation shall include,
but it is not limited to, being reasonably available to participate in
depositions, providing accurate and truthful information about C & D, complying
with requests by C & D to meet with its attorneys for the purpose of providing
information to them, and providing any other form of reasonable assistance
requested.
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17. TERMS CONFIDENTIAL.
Xx. Xxxxx agrees to keep confidential and not disclose the financial
terms of this Agreement except to his immediate family (who agree to comply with
this obligation of confidentiality) and tax and legal advisers.
18. ENTIRE AGREEMENT.
This Agreement replaces and supercedes all prior agreements between
the parties including, without limitation the Employment Agreement, and
constitutes the entire agreement between the parties. No modification to this
Agreement shall be effective unless it is in writing and signed by an officer of
C & D and Xx. Xxxxx.
19. CHOICE OF LAW AND SELECTION OF FORUM.
This Agreement shall be interpreted, enforced, and governed under the
laws of the Commonwealth of Pennsylvania. All disputes arising under this
Agreement shall be brought exclusively in either the federal or state courts of
the Commonwealth of Pennsylvania. Xx. Xxxxx consents to the exercise of personal
jurisdiction by the federal and/or state courts of the Commonwealth of
Pennsylvania.
20. AGREEMENT ENTERED KNOWINGLY AND VOLUNTARILY.
Xx. Xxxxx acknowledges that he has been given a reasonable opportunity
to discuss this Agreement with an attorney or advisor of his choice; that he has
carefully read and fully understands all of the provisions of this Agreement;
and that he is entering into this Agreement knowingly, voluntarily and of his
own free will.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on
the dates indicated next to their respective signature.
March 24, 2000 /s/ Xxxxx X. Xxxxx (SEAL)
----------------- -------------------------------
Date Xxxxx X. Xxxxx
C & D TECHNOLOGIES, INC.
March 28, 2000 By:/s/ Xxxx X. Xxxxxx
----------------- -----------------------------
Date
Title: Vice President -
Human Resources
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EXHIBIT A
RELEASE
This Release is made this _____ day of _______________, 2000 by and between
C&D Technologies, Inc. ("C&D") and Xxxxx X. Xxxxx ("Xx. Xxxxx").
RECITALS:
WHEREAS, the parties are parties to an Employee Separation Agreement (the
"Separation Agreement") dated___________:
WHEREAS, Xx. Xxxxx'x execution and delivery of this Release is a condition
to the C&D's obligations to pay certain compensation to him under the Separation
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. EFFECTIVE DATE AND TRANSITION.
As of _____________________, 2000, (the "Effective Date") Xx. Xxxxx'x
employment with C&D terminated, and Xx. Xxxxx has no further job
responsibilities to perform for C&D; provided, however, that Xx. Xxxxx shall
cooperate with C&D in transitioning Xx. Xxxxx'x job responsibilities as C&D
shall reasonably request, provided that Xx. Xxxxx shall be entitled to receive
reasonable compensation for any services rendered after such date and shall not
be obligated to take any action that would interfere with any subsequent
employment of Xx. Xxxxx or otherwise result in economic hardship to Xx. Xxxxx.
2. CONSIDERATION.
C&D shall pay to the Xx. Xxxxx the amounts contemplated pursuant to
Section 3 of the Separation Agreement, less applicable payroll and tax
deductions.
3. GENERAL RELEASE.
After having had a reasonable opportunity to review this Agreement and
an opportunity to consult with an advisor or an attorney of his choice, Xx.
Xxxxx, his heirs, administrators, and assigns, knowingly and voluntarily
releases, remises and forever discharges C & D, its subsidiary and related
companies, and each of their respective officers, directors, employees, agents
and attorneys and all those charged or chargeable with liability on their behalf
(collectively "Releasees"), from any and all rights or claims, of any nature
whatsoever which he has or may have against Releasees, including, but not
limited to those rights or claims arising out of or in any way connected with
Xx. Xxxxx'x employment by C & D or his separation from employment by C & D,
including, but not limited to claims for wrongful discharge, breach of contract,
breach of the covenant of good faith, intentional or negligent infliction of
emotional distress, defamation, negligence, misrepresentation, fraud,
discrimination on the basis of race, color, religion, marital status, national
origin, handicap or disability, or veteran's status, including, but not limited
to all rights or claims under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. ss. 2000e-1, et seq., the Americans With Disabilities Act, 42
U.S.C. ss.
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12101, et seq., and the Pennsylvania Human Relations Act, 43 P.S. ss. 951 et
seq., as well as any other claim arising under any other federal, state, or
local statute, ordinance, regulation, or common law that Xx. Xxxxx now has or
ever had against Releasees from the beginning of time to the date of this
Agreement. It is expressly understood and agreed that the foregoing is a general
release.
4. RELEASE OF AGE DISCRIMINATION CLAIMS.
After having had a reasonable opportunity to review this Agreement and
an opportunity to consult with an attorney or adviser of his choice, Xx. Xxxxx,
his heirs, administrators, and assigns, knowingly and voluntarily releases,
remises and forever discharges C & D Technologies, Inc., its subsidiary and
related companies, and each of their respective officers, directors, employees
and agents and all those charged or chargeable with liability on their behalf,
of and from any and all rights or claims which he may have against any of them
under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
ss. 621 et. seq. or under any other federal or state law prohibiting
discrimination based upon age, from the beginning of time to the date of this
Agreement.
5. COMPLIANCE WITH OLDER WORKERS BENEFIT PROTECTION ACT.
This Agreement is intended to comply with Section 201 of the Older
Workers Benefit Protection Act of 1990, 29 U.S.C. ss. 626(f). Accordingly, Xx.
Xxxxx acknowledges and represents as follows:
a. he waives all rights or claims against C & D under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. ss. 621, et seq.
("ADEA") knowingly and voluntarily in exchange for consideration of value to
which he is not otherwise entitled;
b. he has been advised in writing by C & D to consult with an
attorney in connection with this Agreement and his decision to waive his rights
or claims under the ADEA;
c. he has been given a period of at least twenty-one (21) days
within which to consider this Agreement and his decision to waive his rights or
claims under the ADEA; and
d. he has been informed by C & D and understands that he may revoke
this Agreement for a period of seven (7) days after signing it and that this
Agreement will not become effective or enforceable until after this seven (7)
day period has expired.
6. REVOCATION OF THIS AGREEMENT.
In the event that Xx. Xxxxx chooses to revoke his acceptance of this
Agreement, he will provide C & D with written notice of the revocation, which
shall be sent by United States mail, certified, return receipt requested,
post-marked within seven (7) days of the date that he signs this Agreement.
Notice to C & D shall be given to Xxxx Xxxxxx, Vice President - Human Resources.
7. COVENANT NOT TO XXX.
Xx. Xxxxx agrees and covenants that he has not and will not bring any
action, or file any claims against C & D and its subsidiary and related
companies, or any of their
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respective officers, directors, employees or agents, past and present,
individually or collectively, which relates in any way to his employment or his
separation from employment by C & D.
8. NO ADMISSION OF LIABILITY.
Xx. Xxxxx 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.
9. NO OTHER INDUCEMENTS.
Xx. Xxxxx affirms that the only consideration for the signing of this
Release are the terms stated herein and in the Separation Agreement and that no
other promise or agreement of any kind has been made to Xx. Xxxxx by any person
or entity whatsoever to cause Xx. Xxxxx to sign this Release.
10. NO OTHER AGREEMENTS.
Xx. Xxxxx and C&D affirm that the Separation 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. All of the
provisions of the Separation Agreement that by their terms are to be performed
or that otherwise are to endure after Effective Date shall survive and continue
in effect for the respective periods therein provided or contemplated.
11. RETURN OF MATERIALS.
Xx. Xxxxx represents that he has returned to C&D all materials in his
possession or within his control which relate to the business of C & D,
including, but not limited to, data, documents, reports, programs, diskettes,
computer printouts, program listings, computer hardware and/or software,
memoranda, notes, records, reports, plans, studies, price lists, customer lists,
customer contact and other information, and any and all similar information
without regard to the form in which it is maintained. Xx. Xxxxx acknowledges
that all such materials are the sole property of C & D and that he has no right,
title, or other interest in or to such materials. Xx. Xxxxx further certifies
that he has returned all Company credit cards, computers, printers, telephones
and any similar or dissimilar items.
12. CONSULTATION WITH COUNSEL.
Xx. Xxxxx acknowledges that C&D advised Xx. Xxxxx to consult with an
attorney prior to executing this Release.
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13. CONFIRMATION OF UNDERSTANDING.
Xx. Xxxxx affirms that he has carefully read this Release, that he
fully understands the meaning and intent of this document, that he has signed
this Release voluntarily and knowingly, and that he intends to be bound by the
promises contained in this Release for the consideration described in Section 2
above.
14. CHOICE OF LAW AND SELECTION OF FORUM.
This Agreement shall be interpreted, enforced, and governed under the
laws of the Commonwealth of Pennsylvania. All disputes arising under this
Agreement shall be brought exclusively in either the federal or state courts of
the Commonwealth of Pennsylvania. Xx. Xxxxx consents to the exercise of personal
jurisdiction by the federal and/or state courts of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, Xx. Xxxxx and the authorized representative of C&D
have executed this Release on the dates indicated below:
C&D TECHNOLOGIES, INC.
Dated:___________________________
By:______________________________
Title:_____________________________
Dated:_____________________________
----------------------------------
Xxxxx X. Xxxxx
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ENDORSEMENT
I, ___________________________________, 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.
---------------------------------
Xxxxx X. Xxxxx
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