Exhibit 10.35
RELEASE
This Release is made this 2nd day of March, 2006 by and between
C&D Technologies, Inc. ("Employer") and Xxxxxxx Xxxxxxx ("Employee").
Recitals:
WHEREAS, the parties are parties to an Employment Agreement (the
"Employment Agreement") dated February 1, 2006, pursuant to which Employee was
employed by Employer; and
WHEREAS, Employee's employment and the Term, as defined in the
Employment Agreement, have terminated; and
WHEREAS, the execution and delivery of this Release by Employee is a
condition to the Employer's obligations to pay certain compensation and provide
certain benefits to Employee under the Employment 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. As of April 1, 2006, Employee's employment with Employer shall
terminate, and Employee shall have no further job responsibilities to perform
for Employer; provided, however, that Employee shall cooperate with Employer in
transitioning Employee's job responsibilities as Employer shall reasonably
request, provided that Employee shall be entitled to receive reasonable
compensation for any services rendered prior to such date and shall not be
obligated to take any action that would interfere with any subsequent employment
of Employee or otherwise result in economic hardship to Employee.
2. Employer shall pay and provide to Employee the amounts and
benefits contemplated pursuant to Section 9 of the Employment Agreement, less
applicable deductions; provided however, the first payment shall not be due and
payable until ten days after the execution by Employee, delivery to Employer and
non-revocation of this Release. Employer further agrees to reimburse Employee
for up to $10,000 in pre-approved outplacement services incurred on or before
April 1, 2007, and to reimburse Employee for up to $2500 in financial services
for Employee incurred on or before April 1, 2007. Employer also agrees to
reimburse the actual monthly out-of-pocket COBRA expenses incurred by Employee
minus the amount of Employee's contribution for medical, dental and vision
coverage under Employer's plans selected by Employee as of the last month of
employment for up to a maximum of 12 months.
3. For and in consideration of the monies and benefits paid to
Employee by Employer, as more fully described in Section 2 above, and for other
good and valuable consideration, Employee hereby waives, releases and forever
discharges Employer, its assigns,
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predecessors, successors, and affiliated entities, and its current or former
stockholders, officers, directors, administrators, agents, servants and
employees, individually and as representatives of the corporate entity
(hereinafter collectively referred to as "Releasees"), from any and all claims,
suits, debts, dues, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, bonuses, controversies, agreements, promises, charges, complaints,
damages, sums of money, interest, attorney's fees and costs, or causes of action
of any kind or nature whatsoever whether in law or equity, including, but not
limited to, all claims arising out of his employment or termination of
employment with Employer, such as all claims for wrongful discharge, breach of
contract, either express or implied, interference with contract, emotional
distress, fraud, misrepresentation, defamation, claims arising under the Civil
Rights Acts of 1964 and 1991, as amended, the Americans With Disabilities Act,
the Age Discrimination in Employment Act (ADEA), the National Labor Relations
Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act
of 1974 (ERISA), as amended, the Family and Medical Leave Act, the Pennsylvania
Human Relations Act, the Pennsylvania Wage Payment & Collection Law, the
Pennsylvania Minimum Wage Act of 1968, the Pennsylvania Equal Pay Law, and any
and all other claims arising under federal, state or local law, rule,
regulation, constitution, ordinance or public policy whether known or unknown,
arising up to and including the date of execution of this Release; provided,
however, that the parties do not release each other from any claim of breach of
the terms of this Release. This release of rights does not extend to claims that
may arise after the date of this Release, including without limitation, for
payments or benefits described in Section 2 of this Release, nor to claims under
employee benefit plans that are qualified under Section 401(a) of the Internal
Revenue Code, nor to any rights of indemnification by the Company to which the
Employee is otherwise entitled. Employee agrees that Employee will not initiate
any charge or complaint or institute any claim or lawsuit against Releasees or
any of them based on any fact or circumstance occurring up to and including the
date of the execution by Employee of this Release based upon a claim that is
released hereunder.
4. Employee 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.
5. Employee affirms that the only consideration for the signing of
this Release are the terms stated herein and in the Employment Agreement and
that no other promise or agreement of any kind has been made to Employee by any
person or entity whatsoever to cause Employee to sign this Release.
6. Employee and Employer affirm that the Employment 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.
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7. Employee acknowledges that Employee has been given a period of at
least 21 days within which to consider this Release.
8. Following the execution of this Release, Employee has a period of
seven days from the date of execution to revoke this Release, and this Release
shall not become effective or enforceable until the revocation period has
expired.
9. Employee certifies that Employee has returned to Employer all
keys, identification cards, credit cards, computer and telephone equipment and
other property or information of Employer in Employee's possession, custody, or
control including, but not limited to, any information contained in any computer
files maintained by Employee during Employee's employment with Employer.
Employee certifies that Employee has not kept the originals or copies of any
documents, files, or other property of Employer which Employee obtained or
received during Employee's employment with Employer.
10. Employee acknowledges and agrees that the execution of this
Release does not supercede any of the provisions of the Employment Agreement
which otherwise survive the termination of Employee's employment with the
Employer, including without limitation, Section 5, 6, 7 and 19 thereof.
11. Employee acknowledges that Employer advised Employee to consult
with an attorney prior to executing this Release.
12. Employee affirms that Employee has carefully read this Release,
that Employee fully understands the meaning and intent of this document, that
Employee has signed this Release voluntarily and knowingly, and that Employee
intends to be bound by the promises contained in this Release for the aforesaid
consideration.
IN WITNESS WHEREOF, Employee and the authorized representative of
Employer have executed this Release on the dates indicated below:
C&D TECHNOLOGIES, INC.
Dated: 3/23/06 By: /s/ Xxxxx X. Xxx
---------------------------- -------------------------------------
Xxxxx X. Xxx
Title: Vice President, General Counsel &
Corporate Secretary
Dated: 3/23/06 /s/ Xxxxxxx Xxxxxxx
---------------------------- ----------------------------------------
Xxxxxxx Xxxxxxx
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ENDORSEMENT
I, Xxxxxxx Xxxxxxx, 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 23rd day of March, 2006, at Plymouth Meeting,
Pennsylvania.
/s/ Xxxxxxx Xxxxxxx
-------------------------
Xxxxxxx Xxxxxxx
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