EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This Amended and Restated Employment Agreement (this "Agreement") is
made effective December 1, 1998 by Exide Corporation, a Delaware corporation
("Exide"), and Xx. Xxxxxx X. Xxxx, an individual ("Executive").
RECITALS
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WHEREAS, Exide's Board of Directors authorized an offer of employment
to Executive and Executive accepted Exide's written offer for employment dated
November 10, 1998.
WHEREAS, Exide's Board of Directors has elected Executive as Chairman
of the Board of Directors of Exide.
WHEREAS, Executive and Exide agreed to extend the term of this
Agreement until December 1, 2003.
WHEREAS, Exide and Executive now wish to amend and restate the terms
of Executive's employment hereunder.
NOW THEREFORE, the parties, intending to be legally bound, agree as
follows:
I. DEFINITIONS
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For the purposes of this Agreement, the following terms have the meanings
specified below:
"Agreement" -- means this Employment Agreement, as amended from time to time.
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"Board of Directors" -- means Exide's Board of Directors as such may exist
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during the term of this Agreement and any Committee thereof to the extent the
Board of Directors delegates its rights hereunder to any such Committee.
"Cause" -- means Executive's material breach of any provision of this Agreement
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or Executive's material, willful failure to adhere to any written Exide policy.
"Confidential Information" -- (a) trade secrets concerning the business and
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affairs of Exide, product specifications, data, know-how, formulae;
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, financial information, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), and any other
information, however documented, that is a trade secret within the meaning of
applicable state trade secret law;
and (b) information concerning the business and affairs of Exide (including any
of its subsidiaries or affiliated companies); and (c) notes, analysis,
compilations, studies, summaries, and other material prepared by or for Exide
containing or based, in whole or in part, on any information included in the
foregoing.
"Effective Date" -- means the date stated in the first paragraph of the
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Agreement.
"Employment Period" -- means the term of Executive's employment under this
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Agreement.
"Good Reason" -- means any material breach of this Agreement that is not
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corrected by Exide within 10 days of notice from Executive of such breach.
II. EMPLOYMENT TERMS AND DUTIES
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A. EMPLOYMENT
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Exide hereby employs Executive as Chief Executive Officer, and Executive
hereby accepts such employment by Exide, upon the terms and conditions
set forth in this Agreement.
B. TERM
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Subject to the provisions of Section IV, the term of Executive's
employment under this Agreement will continue until December 1, 2003.
Executive and the Board of Directors may extend the term with their
mutual consent.
C. DUTIES
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Executive will have such duties as are specified in Exide's Certificate
of Incorporation and Amended and Restated By-Laws and as assigned or
delegated to Executive by the Board of Directors. Executive will be
allowed to continue on any non-Exide boards of directors that he was on
at the Effective Date or as otherwise approved by the Board of Directors.
III. COMPENSATION
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During the Employment Period, the Executive will be entitled to the following
compensation:
A. BASIC COMPENSATION
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1. Salary: $900,000.00 per year
2. Bonus: up to 150% of base pay as determined by the Board of
Directors.
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B. BENEFITS Executive will, during the Employment Period, be permitted
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to participate in such retirement, life insurance, hospitalization,
major medical, and other employee benefit plans of Exide that may be
in effect from time to time for salaried employees, to the extent
Executive is eligible under the terms of those plans.
C. VACATIONS AND HOLIDAYS
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Executive will be entitled to paid vacation and holidays as set
forth in Exide's policies as modified from time to time.
D. OTHER
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1. Automobiles Executive will be eligible for company vehicles in
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accordance with Exide's company vehicle policy.
2. Administrative Support Executive will be entitled to two
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secretaries and one driver/administrative assistant of his
choice.
3. Office Accommodations of Executive's choice.
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All compensation and benefits referenced above will be paid in accordance with
Exide's applicable policies and plans.
IV. EVENTS OF TERMINATION
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The Employment Period will terminate
A. upon the death or disability of Executive;
B. upon a termination of Executive's employment by Exide for Cause or
without Cause, immediately upon notice from Exide to Executive, or
at such later time as such notice may specify; or
C. upon Executive's termination of his employment with or without Good
Reason.
V. CONSEQUENCES OF TERMINATION
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If Executive's employment hereunder terminates by reason of his death or
disability, or if his employment is terminated by Exide for Cause or by
Executive without Good Reason, Executive, or his estate or guardian, as the case
may be, shall receive any earned but unpaid salary, bonus or unreimbursed
expenses through the date of termination and no other payments or benefits shall
be made or provided Executive (or his estate or guardian) hereunder. If
Executive's employment hereunder is terminated by Exide other than for Cause,
Executive's death or disability, or if Executive shall terminate his employment
hereunder for Good Reason, then, in lieu of any other payments or benefits
hereunder, Executive shall receive (i) any earned but unpaid salary, bonus or
unreimbursed expenses
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through the date of termination, (ii) a cash lump sum equal to the salary he
would have received through December 1, 2003, regardless of the Agreement's
early termination, (iii) the average of the annual bonus received (or, if
applicable, due) with respect to the three most recent fiscal years under this
Agreement, multiplied by the number of days that remain until December 1, 2003,
divided by 365 and (iv) until December 1, 2003, or, if earlier, until such time
as Executive shall have obtained employment providing comparable retirement,
life, disability, accident and health insurance benefits substantially similar
to those provided to Executive and his dependents immediately prior to the date
of Executive's termination of employment at no greater cost to Executive than
the cost to Executive immediately prior to such date. Any amounts Executive is
entitled to receive pursuant to this Section shall be paid to Executive within
five business days of the date of his termination of employment. In the event
Executive terminates his employment for Good Reason as a result of any reduction
to his salary, bonus or benefits payable hereunder, any payment or benefit due
hereunder shall be determined with reference to the salary, bonus or benefits
which were provided immediately prior to the occurrence of the event
constituting Good Reason. If a Change in Control (as defined in Executive's
Change in Control Agreement) occurs during the Employment Period, Executive
shall not be entitled to any payment or benefit pursuant to this Section 5.
VI. CONFIDENTIALITY
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During and following the Employment Period, Executive agrees to hold in
confidence the Confidential Information and will not disclose it to any person
except with the specific prior written consent of the Board of Directors or
except as otherwise expressly permitted by the terms of this Agreement.
VII. INDEMNIFICATION
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During and following the Employment Period, Exide agrees to indemnify Executive
for any acts or omission performed by Executive in the course of his employment
to the fullest extent allowed by law, the Certificate of Incorporation, the
Amended and Restated Bylaws and applicable Board of Director resolutions.
VIII. INJUNCTIVE RELIEF
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Executive acknowledges that the injury that would be suffered by Exide as a
result of a breach of the provisions of this Agreement would be irreparable and
that an award of monetary damages to Exide for such a breach would be an
inadequate remedy. Consequently, Exide will have the right, in addition to
any other rights it may have, to obtain injunctive relief to restrain any breach
or threatened breach or otherwise to specifically enforce any provision of this
Agreement, and Exide will not be obligated to post bond or other security in
seeking such relief.
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IX. REPRESENTATIONS AND WARRANTIES
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A. Executive represents and warrants to Exide that the execution and
delivery by Executive of this Agreement do not, and the performance
by Executive of Executive's obligations hereunder will not, with or
without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to Executive; or (b)
conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement to
which Executive is a party or by which Executive is or may be bound.
B. By execution of this Agreement, Exide acknowledges that this
Agreement has been reviewed and adopted by a resolution approved by
the Board of Directors.
X. MITIGATION
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Exide agrees that, if Executive's employment with Exide terminates during the
Employment Period, Executive is not required to seek other employment or to
attempt in any way to reduce any amounts payable to Executive hereunder.
XI. RESTRICTIONS
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Executive agrees that Exide's business depends, to a considerable extent, on the
individual efforts of Executive. Accordingly, unless otherwise approved by the
Board of Directors, Executive covenants and agrees that he will not, during the
Employment Period and for one year thereafter, engage directly or indirectly,
either as principal, agent or consultant or through any corporation, firm or
organization in which he may be an officer, director, employee, substantial
shareholder, partner, member or be otherwise affiliated, in activities
competitive with the business being conducted by Exide at the time of
termination of the Employment Period.
XII. WAIVER
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The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by either party in exercising
any right, power, or privilege under this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a
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waiver or renunciation of the claim or right unless in writing signed by the
other party; (b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given and (c) no notice to or
demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
XIII. BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
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This Agreement shall inure to the benefit of; and shall be binding upon, the
parties hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which Exide may merge or consolidate
or to which all or substantially all of its assets may be transferred. The
duties and covenants of Executive under this Agreement, being personal, may not
be delegated or assigned.
XIV. NOTICES
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All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or(c) when received by the addressee, if sent by
an overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties):
If to Exide: Exide Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Executive Vice President, Human Resources
If to Executive: Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
XV. ENTIRE AGREEMENT; AMENDMENTS
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This Agreement contains the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
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XVI. GOVERNING LAW
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This Agreement will be governed by the laws of the State of Michigan without
regard to conflicts of laws principles.
XVII. SECTION HEADINGS; CONSTRUCTION
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The headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this Agreement
unless otherwise specified. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
XVIII. SEVERABILITY
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If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
XIX. COUNTERPARTS
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This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
XX. WAIVER OF JURY TRIAL
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THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH RESPECT TO
THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date above first written above.
EXIDE CORPORATION EXECUTIVE
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Xxxx X. Xxx Xxxx Xxxxxx X. Xxxx
Executive Vice President, General Counsel and
Secretary
(Acting pursuant to the authorization
of the Board of Directors)
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