RELEASE, SETTLEMENT AND INCOME PROTECTION AGREEMENT
Exhibit 10.2
This Release, Settlement and Income Protection Agreement (“Agreement”) is entered into
between Xxxxxx X. Xxxxx, Xx. (“Employee”), and Exide Technologies, a Delaware corporation, with
offices at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx 000, Xxxxxx, Xxxxxxx, 00000 (hereinafter referred to
as “Exide”) effective December 1, 2010 (“Separation Date”).
In exchange for entering into this Agreement, Employee shall be entitled to the income
protection and other benefits described in Paragraphs 1, 2, 3, 4, 5 and 6 below. Employee
acknowledges and agrees that the income protection benefits constitute good, valuable and
sufficient consideration for this Agreement.
Employee also acknowledges and agrees that to the extent that the terms of this Agreement are inconsistent or conflict with Exide Technologies’ Post Separation Income Protection
Policy for Salaried Employees (the “Income Protection Plan” or “Plan”), the Income Protection
Statement (“IPS”), attached as Exhibit A hereto, or any agreement that refers or relates to such
Plan, this Agreement shall control.
NOW, THEREFORE, intending to be legally bound hereby, the parties agree as follows:
1. Income Protection Payments. Exide will pay Employee the amount of approximately $6,031.87
per week for 52 weeks following the Separation Date (for a maximum of Three Hundred Thirteen
Thousand, Six Hundred and Fifty Seven Dollars ($313,657.00)) (“Income Protection Payments”) subject
to normal deductions for federal and state taxes and other required withholdings. The Income
Protection Payments will be paid to Employee in installments, consistent with Exide’s regular
payroll schedule and mailed to Employee’s home address commencing on the first pay date on or after
the first day of the seventh month following Employee’s termination of employment. The first such
payment shall include a make-up payment equal to all Income Protection Payments that would have
been made to Employee from the date of Employee’s termination of employment through such payment
date absent the six month delay in payment. Each payment shall be considered a separate payment
and not part of a series of payments for purposes of Section 409A of the Internal Revenue Code of
1986, as amended. The Income Protection Payments shall not be subject to reduction or mitigation
should Employee find alternative employment during such fifty-two week period.
Notwithstanding the paragraph above, any Income Protection Payments or other payments made to
Employee under this Agreement shall be first used to satisfy any obligations Exide may have to
Employee under the Worker Adjustment and Retraining Act of 1988 (“WARN”) or similar statutes or
regulations of any jurisdiction relating to any plant closing or mass lay-off or as otherwise
required by law.
2. Annual Short-Term Incentive Payment. Exide will pay to Employee a pro-rata share of
Employee’s earned fiscal 2011 Annual Incentive Plan award, if any, pursuant to the terms and
conditions of the Fiscal 2011 Annual Incentive Plan. Payout, if any, will occur after the fiscal
2011 results have been finalized, audited and approved by the Compensation Committee of the Board
of Directors.
3. Outplacement, Tax and Financial Planning Services. Employee shall receive reimbursement
for up to $3,600.00 in outplacement assistance costs incurred or paid during the twelve (12) months
following the Separation Date. Any such payments will only be made upon submission of proper
documentation of the expenses, and payments will be made, at Employee’s election, (i) directly to
the vendor or (ii) directly to the employee. All such reimbursements must be submitted and
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reimbursements made no later than December 31, 2011. Employee shall separately receive a
payment of $16,400.00 to reasonably reimburse him for the expected costs of the tax and financial
planning services that he will incur prior to December 31, 2010 in connection with this Agreement.
4. Vesting Acceleration. All restricted stock granted to Employee prior to April 1, 2010 that
have not become non-forfeitable on the Separation Date shall become non-forfeitable on the
Separation Date. Executive shall be entitled to satisfy any state and federal income tax resulting
from the acceleration of any such restricted stock awards by cash payment or by the surrender of a
portion of such awards. Unrestricted stock certificates shall be issued within fourteen (14) days
after the Separation Date, at which time the shares will become transferable. All restricted stock
units granted to Employee on March 22, 2007 that have not become non-forfeitable on the Separation
Date shall become non-forfeitable on the Separation Date, and unrestricted share certificates shall
be issued to Employee within fourteen (14) days of Employee’s separation from service on account
of any restricted stock units that become non-forfeitable on the Separation Date. With respect to
any restricted stock units that prior to the Separation Date became non-forfeitable, unrestricted
share certificates shall be issued to Employee on the date that is six months after the Employee’s
separation from service pursuant to the terms of the restricted shares unit award agreement. All
stock options granted to the Executive after April 1, 2008 shall become immediately non-forfeitable
and exercisable at the Separation Date. All of Employee’s outstanding non-qualified stock options
at the Separation Date shall be permitted to be exercised within two (2) years following the
Separation Date. All performance-based awards which have not vested and become payable as of the
Separation Date shall be forfeited.
5. One Time Payment. Within seven (7) days after the Separation Date, Exide will
make a one time payment to Employee in the amount of $8,444.62, subject to normal deductions for
federal and state taxes and other required withholdings as payment in lieu of notice or any other
income, time off, or vacation benefits to which Employee may believe he is entitled.
6. Health Benefit Continuation. Employee’s health (medical, dental, vision, health care
flexible spending), AD&D and life insurance benefits will continue in a manner substantially the
same as those benefits were provided immediately prior to the termination and at substantially the
same cost to the employee, but subject to increases applied to active salaried employees until
either (a) the first of the month after Employee becomes eligible for coverage by another employer
or (b) the end of the month in which the final Income Protection Payment is made, whichever is
shorter. Employee agrees to inform Exide immediately if he becomes eligible for health insurance
coverage by another employer. During the period described above, the difference between the cost
for benefit continuation of coverage that Employee would be required to pay for such continuation
coverage under COBRA and the amount Employee is required to pay for such coverage during such
period will be considered imputed income to Employee. Employee will be responsible for the payment
of income tax as a result of such imputed income. During the period between termination of
employment and commencement of Income Protection Payments, Employee will pay to Exide monthly
payments equal to the amount Employee is required to pay for such coverage during such period;
thereafter, Employee’s cost will be withheld from such Income Protection Payments. Employee may,
but is not required, to continue participating in Exide’s medical and dental plans for a limited
period of time by electing COBRA continuation coverage. Additional information about COBRA may be
obtained by contacting Ms. Xxxxx Xxxxx, Director Employee Benefits, Exide Technologies, 00000
Xxxxxxxxx Xxxxxxx, Xxxx. 000, Xxxxxx, XX 00000.
7. General Release of Claims. Except as otherwise noted, Employee, for himself and his
respective successors, representatives, administrators, executors, agents, heirs, beneficiaries
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and
assigns, does waive, release and forever discharge Exide and the Releasees (as defined
below) of and from any and all Claims (as defined below). This release covers any and all Claims
arising from the beginning of time up to and including the date Employee executes this Agreement,
including, but not limited to, all Claims relating, regarding or referring to Employee’s employment
with Exide, the terms and conditions of such employment and his separation from such employment,
but does not cover: (a) claims relating to the enforcement of this Agreement; and (b) claims for
indemnification and/or coverage as an insured or additional insured under one or more Exide
insurance policies (at all times subject to the terms and conditions of such agreement(s) and/or
policy(ies)). To the extent permitted by law, Employee agrees not to file a lawsuit to assert
any Claims that are released herein. Employee also agrees and acknowledges that he has been
paid properly and in full for all hours he has worked and for any vacation time.
a. Definition of “Claims”. For purposes of these release provisions, “Claims” includes,
without limitation, all actions or demands of any kind against Exide and/or the Releasees (as
defined below), or any of them, that Employee had, now has, or may have or claim to have in the
future. More specifically, “Claims” include rights, causes of action, charges, suits, grievances,
damages, penalties, losses, attorneys’ fees, costs, expenses, obligations, agreements, judgments
and all other liabilities of any kind or description whatsoever, either in law or in equity,
whether known or unknown, suspected or unsuspected.
All of the following are among the types of Claims which will be barred by this release and
covenant not to xxx:
| • | Contract claims (whether express or implied); | ||
| • | Tort claims, such as for defamation or emotional distress; | ||
| • | Claims under federal, state and municipal laws, regulations, ordinances or court decisions of any kind; | ||
| • | Claims of discrimination, harassment or retaliation, whether based on race, color, religion, gender, sex, age, sexual orientation, handicap and/or disability, national origin or any other legally protected class; | ||
| • | Claims under the Age Discrimination In Employment Act, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, as amended, and similar state statutes and municipal ordinances; | ||
| • | Claims under the Employee Retirement Income Security Act, federal and state wage payment laws and federal and state wage and hour laws, including laws relating to overtime and vacation; | ||
| • | Claims under the Worker Adjustment and Retraining Act of 1988 or similar statutes or regulations of any jurisdiction relating to any plant closing or mass lay-off; | ||
| • | Claims under the Family and Medical Leave Act and similar state leave laws; | ||
| • | Claims for wrongful discharge; | ||
| • | Claims for reasonable attorneys’ fees, including litigation expenses and costs; |
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| • | Claims made under, or related to, Exide’s Income Protection Plan; and | ||
| • | Claims made under or related to any Exide bonus, incentive or other similar plan or program. |
This list of Claims covered by this release is not intended to be, and shall not be construed as,
an exhaustive list. By entering into this Agreement, Employee is not releasing his right to
receive any employee benefits which vested and accrued prior to Employee’s last day of work and to
which Employee is entitled under the governing plan documents for Exide’s employee benefit
programs.
b. Definition of “Releasees.” For purposes of this Agreement, “Releasees” includes, without
limitation, Exide Technologies and its past, present and future parents, affiliates, subsidiaries,
divisions, predecessors, successors, assigns, employee benefit plans and trusts. It also includes
all past, present and future managers, directors, officers, partners, agents, employees,
shareholders, insurers, attorneys, representatives, consultants, associates, fiduciaries, plan
sponsors, administrators and trustees of each of the foregoing.
c. Scope of Release. Employee declares and agrees that any Claims he may have incurred or
sustained may not be fully known to him and may be more numerous and more serious than he now
believes or expects. Further, in making this Agreement, Employee relies wholly upon his own
judgment of the future development, progress and result of said Claims, both known and unknown, and
acknowledges that he has not been influenced to any extent whatsoever in the making of this
Agreement by any representations or statements regarding said Claims made by Exide and/or the
Releasees, or any of them. Employee further acknowledges that he accepts the terms herein in full
settlement and satisfaction of all such Claims and that no such Claim is reserved.
d. Indemnification for Breach of Agreement. Employee represents and warrants that no Claims
covered by this paragraph 7 are now pending against Exide or any of the Releasees. Under the terms
of this Agreement, and except as may be prohibited by law, Employee is barred from asserting any
Claims against Exide or any of the Releasees. Except as may be prohibited by law, if Employee
commences, joins in, continues or in any other manner attempts to assert any Claims in violation of
this Agreement and covenant not to xxx, or otherwise breaches any promise made in this Agreement,
he agrees to indemnify and hold harmless Exide and the Releasees, or any of them, from and against
all losses incurred, including without limitation, costs and attorneys’ and expert fees, in
defending such Claims or pursuing any released party’s rights hereunder.
8. Cooperation in Legal Proceedings. During the period that Employee is receiving income
protection benefits, he agrees to cooperate with Exide with respect to any past, present, or future
claim, charge, action, suit, government or regulatory investigation, or other proceeding in a court
of law, arbitration, government agency, or in any other forum, that has been, may be, or is
threatened to be brought against Exide (including specifically any of its officers, directors or
employees) and/or any of the Releasees, or that has been or is brought by or on behalf of Exide
and/or any of the Releasees, that relates to or arises from any action or inaction that actually or
allegedly occurred while Employee was employed by Exide (a “Proceeding”). Except as may be
required by law, Employee shall not disclose or discuss with anyone who is not directing or
assisting Exide in any Proceeding, other than Employee’s
own attorney, the fact of or the subject matter of any Proceeding. In requesting cooperation and
information from Employee, Exide will attempt to arrange times that reasonably accommodate Employee
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and, to the extent permitted by law, will reimburse Employee for any reasonable and pre-approved
travel and other out -of- pocket expenses Employee incurs in providing the cooperation and
assistance described in this paragraph so long as Employee submits adequate supporting
documentation to Exide. Any reimbursement of expenses under this Section 8 shall be for expenses
incurred by Employee during his lifetime and such reimbursement shall be made not later than the
last day of the calendar year following the calendar year in which Employee incurs the expense. In
no event will the amount of expenses so reimbursed by Exide in one year affect the amount of
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
9. Confidentiality of Agreement. Except as may be specifically and lawfully required or
ordered by any state or federal administrative agency, tribunal or court, Employee will not
disclose or communicate any term of this Agreement (“Confidential Term”) to any person except
Employee’s spouse, Employee’s attorney, or (to the limited extent necessary to allow preparation of
Employee’s tax returns) Employee’s accountant or financial advisor. Before Employee makes any
such authorized disclosure, Employee will inform each such person to whom disclosure is to be made,
that the terms of this Agreement are confidential, and Employee will secure the agreement of each
such person to maintain the confidentiality of all such terms. If Employee discloses any terms of
this Agreement to his spouse, moreover, he shall be responsible for any disclosure of any terms of
this Agreement by his spouse, except as specifically permitted by this paragraph. Employee
affirms that he and his spouse have complied with all of the terms of this paragraph up through the
date on which he signed this Agreement.
Upon receipt of a subpoena or other compulsory process that could possibly require disclosure of
any Confidential Term by Employee or his spouse, Employee shall provide a copy of the compulsory
process and complete information regarding the date and circumstances under which he received it to
Exide within twenty-four (24) hours of such receipt. Employee or his spouse will not make any
disclosure until the Latest Possible Date for making such disclosure in accordance with the
compulsory process (“Latest Possible Date”). If Exide seeks to prevent disclosure in accordance
with the applicable legal procedures and provides Employee with notice before the Latest Possible
Date that it has initiated such procedures, Employee and his spouse will take reasonable steps not
to make disclosure of any Confidential Term that is the subject of such procedures until such
objections are withdrawn or ruled upon, but may, if reasonably believed to be necessary to prevent
being in contempt or violation of any applicable order or rule, comply with the subpoena or other
compulsory process that could possibly require disclosure of any Confidential Term.
10. Covenant Not To Solicit Customers. Employee agrees that for a period of fifty two
(52) weeks beginning on the date he signs this Agreement, he will not, directly or indirectly, for
himself or for or on behalf of any business divert, solicit or attempt to divert or solicit any
individual or entity (i) who is or was a customer of the Company at any time during the 18 month
period prior to Employee’s termination of employment, or who was actively sought by the Company as
a prospective customer during such 18 month period, and (ii) with whom Employee had actual contact
on behalf of the Company while employed there for the purpose of furthering the business of the
Company.
11. Covenant Not To Solicit Prospective Customers or Employees. Employee further agrees that
for a period of fifty two (52) weeks beginning on the date he signs this Agreement, he will not,
directly or indirectly, for himself or for or on behalf of any business divert, solicit or hire
away, or attempt to divert, solicit or hire away, to or for any individual or entity, any person
employed or retained
by the Company with whom Employee had actual work-related contact while employed or retained by the
Company, whether or not such employee is a full-time employee, part-time employee or temporary
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worker of the Company, whether or not such individual is employed or retained pursuant to a written
agreement and whether or not such individual is employed or retained for a determined period or
at-will. Nothing contained herein is intended to restrict, or shall be construed as restricting,
Employee from providing consulting or other services related generally to human resources,
personnel, and employment practices, policies, programs, departments, and operations.
12. Confidentiality of Business Information. (a) By signing this Agreement, Employee
warrants that he has not in the past, and agrees that for a period of two (2) years beginning on
the date he signs this Agreement, will not in the future, use or disclose any non-public or
privileged information relating to the Company or any Releasee, or any of their activities,
including, but not limited to, information about current or future products, marketing information,
financing and other financial information, business plans, trademarks, copyrights, patents or
patent applications, trade secrets, research and development activities or other intellectual
property, manufacturing requirements, specifications, processes, practices and procedures,
personnel information (including without limitation employee names, home addresses, performance,
discipline, benefits, phone numbers, compensation, job descriptions or responsibilities),
partners, potential partners, suppliers, potential suppliers, customer and potential customer
information (collectively “Confidential Information”). Employee further agrees that he will not
disclose any of Exide’s trade secrets after the expiration of this two-year term as long as such
information remains a trade secret. Employee may use or disclose Confidential Information only:
1) with the prior written consent of Exide’s CEO or his designee; or
2) in a legal proceeding between Employee and Exide to establish the rights of either party
under this Agreement, provided that Employee stipulates to a protective order to prevent any
unnecessary use or disclosure; or
3) subject to a compulsory legal process that requires disclosure of such information,
provided that Employee has complied with the procedures set forth in paragraph 12(b) below to
ensure that Exide has an adequate opportunity to protect its legal interests in preventing
disclosure.
(b) Upon receipt of a subpoena or other compulsory process that could possibly require disclosure
of any Confidential Information by Employee or his spouse, Employee shall provide a copy of the
compulsory process and complete information regarding the date and circumstances under which he
received it to Exide within twenty-four (24) hours of such receipt. Employee or his spouse will
not make any disclosure until the Latest Possible Date for making such disclosure in accordance
with the compulsory process. If Exide seeks to prevent disclosure in accordance with the
applicable legal procedures and provides Employee with notice before the Latest Possible Date that
it has initiated such procedures, Employee and his spouse will not make disclosure of any
Confidential Information that is the subject of such procedures until such objections are withdrawn
or ruled upon.
13. Injunctive Relief. Employee acknowledges and agrees that (i) the covenants and
agreements set forth in paragraphs 9-12 above are reasonable and necessary for the protection of
Exide’s legitimate business interests, (ii) Employee can honor all of those covenants without
adversely affecting his ability to earn a fully adequate livelihood for himself and his dependents,
(iii) irreparable injury will result to Exide if Employee breaches any of those covenants or
agreements and (iv) in the event of Employee’s actual or threatened breach of any such covenants or
agreements, Exide will have no adequate remedy at law. Employee accordingly agrees that in the
event of any actual or threatened
breach by him of any of those covenants or agreements, Exide shall be entitled to immediate
injunctive and other equitable relief, without bond and without the necessity of showing actual
monetary damages.
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Nothing in this Agreement shall be construed as prohibiting Exide from pursuing
any other remedies available to it for any such breach or threatened breach, including recovery of
monetary damages.
14. Return of Corporate Property. Employee acknowledges and agrees that, on or before his
last day of work, Employee has returned all Exide property in his possession or under his custody
or control, including both originals and copies, and including, but not limited to, all files,
corporate credit cards, automobiles, keys and access cards, calling cards, cellular or mobile
telephones, parking permits, computer hardware (including but not limited to all personal
computers, laptop computers, and personal data assistants and the contents thereof, as well as any
passwords or codes needed to operate such equipment), computer software and programs, data,
diskettes, external data storage drives or devices, materials, papers, books, memoranda,
correspondence, notes, documents, records, lists, photographs, manuals, handbooks, notebooks,
program listings, flow charts, policies, procedures, customer information, customer lists, vendor
information and lists, marketing information, manufacturing specifications and plans, and data base
information, that Employee has or had relating to Exide or any of its partners, suppliers,
customers, clients, employees, plans, designs, trademarks, copyrights, patents or patent
applications, trade secrets, research and development activities or other intellectual property,
contracts, agreements, strategies, inventions, systems, policies, procedures, and/or practices
(whether those materials are in paper or computer-stored form). Employee represents and warrants
that he has not kept any originals or copies of any such items in any form. Employee further
acknowledges and agrees that his access to such property and facilities ceased immediately upon his
last day of work, and he shall be responsible for reimbursing Exide for all personal expenses
associated with any of the foregoing incurred before that date.
15. Non-Disparagement. Employee agrees to refrain from making any derogatory or
defamatory remarks or comments that disparage Exide or any of its officers, directors, employees,
agents, products or services.
16. Cooperation in Transition of Work. In further consideration of the payments and
other consideration set forth in this Agreement, Employee agrees to provide Exide, upon request,
with a list and a status summary of all outstanding matters, projects, commitments, work
assignments, and all other related matters in which he was involved or working on behalf of Exide
as of November 30, 2010 to identify all Exide personnel working with him on those matters, and
further, to provide his professional and reasonable assistance to Exide in transitioning and
completing such work.
17. No Admission of Wrongdoing or Liability. This Agreement is not an admission by Exide or
any of the Releasees and it is specifically denied that any action Exide and/or any of the
Releasees has taken or failed to take with respect to Employee was wrongful, unlawful, or
susceptible of inflicting any damages or injury to Employee.
18. Consideration for This Agreement. Employee further acknowledges that the consideration
recited in this Agreement is the sole and only consideration for this Agreement; that such
consideration is adequate and fair; and that no representations, promises or inducements have been
made by Exide, or any of its directors, officers, employees or agents other than as appear in this
Agreement.
19. Consideration Period. Employee acknowledges that he has been provided with a period of
twenty-one (21) days to consider the terms of this Agreement from the date this Agreement was
first presented to him, and understands that he may take that entire period to sign and return this
Agreement. Employee agrees that any changes to this Agreement, whether material or immaterial,
will
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not restart the running of the 21-day period. Employee agrees to notify Exide of his
acceptance of this Agreement by delivering a signed and notarized copy to Xxxxxxx X. Xxxxxxx,
Executive Vice President and General Counsel, Exide Technologies, 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx
000, Xxxxxx, XX 00000 no later than the 21st day after he first receives this Agreement.
Employee may, if he chooses, sign and return this Agreement before the 21-day consideration period
expires, but if Employee does so, Employee agrees and acknowledges that his decision to do so was
voluntary, knowing, and not induced by any fraud, misrepresentation, or threat to withdraw or alter
the offer described in this Agreement.
20. Revocation Period. Employee acknowledges that he shall have seven (7) days after signing
this Agreement to revoke it if he chooses to do so. If Employee elects to revoke this Agreement,
he shall give written notice of such revocation to Xxxxxxx X. Xxxxxxx, Executive Vice President
and General Counsel, Exide Technologies, 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx 000, Xxxxxx, XX 00000 in such a manner that it is actually received at that address within the seven (7) day period.
Employee understands that if he exercises his right to revoke this Agreement, he will have no
right to receive any of the consideration described in Paragraphs 1, 2, 3, 4, 5 and 6 above. This
Agreement will not become enforceable until the day after the expiration of the Revocation Period.
21. Consultation with Legal Counsel. Exide advises Employee that he should consult with an
independent attorney of his choosing before deciding whether to sign this Agreement. By signing
this Agreement, Employee represents that he has exercised his right to consult with an attorney of
his choosing to the full extent Employee felt necessary.
22. Certification of Understanding. Employee, intending to be legally bound hereby,
certifies and warrants that he has read carefully this Agreement and has executed it voluntarily
and with full knowledge and understanding of its significance, meaning and binding effect.
Employee further declares that he is competent to understand the content and effect of this
Agreement.
23. Integration. Except as expressly provided herein, this Agreement contains the entire
understanding between Exide and Employee and supersedes all verbal and written agreements, and
there are no other agreements, discussions, negotiations, proposals, representations, warranties or
other understandings of or between the parties. In deciding to sign this Agreement, Employee has
not relied upon, and is not relying upon, any statements, promises, or representations made by any
employee, agent, or representative of Exide that are not expressly set forth herein. The terms of
this Agreement cannot be changed except in a later document signed by both Employee and an
authorized officer of Exide.
24. Governing Law. Except to the extent superseded by federal law (e.g., ERISA), this
Agreement shall be governed, interpreted and applied according to the laws and judicial decisions
of the State of Georgia, which is the state where Exide’s principal place of business is located,
without giving effect to the choice of law provisions of any state.
25. Jurisdiction. In the event Employee breaches or threatens to breach Sections 9,10,11
and/or 12 above, such that it becomes necessary for Exide to seek injunctive or other relief, the
parties agree that jurisdiction for such litigation shall be in the State of Georgia, the state
where Exide’s principal place of business is located. The parties further agree to submit to
jurisdiction in the State of Georgia and hereby agree that they are subject to service of process
issued from or in the State of Georgia.
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26. Dispute Resolution. All disputes between Employee and Exide (or any of its former,
current, or future parents, subsidiaries or affiliates), except claims for injunctive relief based
on an actual or threatened breach of paragraphs 9,10,11 and/or 12 above, or actual or threatened
irreparable harm, or a claim by Employee for unemployment compensation, shall be submitted to
binding arbitration. The arbitration shall be subject to the Federal Arbitration Act and shall be
administered by and conducted pursuant to the JAMS Employment Arbitration Rules and Procedures
(available online at xxx.xxxxxxx.xxx). The decision of the arbitrator(s) shall be final and may be
recorded as a judgment in a court of competent jurisdiction.
27. Miscellaneous.
| (a) | The headings in this Agreement are included solely for ease of reference and shall not be applied or construed to limit or expand upon the rights created hereunder. | ||
| (b) | This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any party. | ||
| (c) | Either party’s failure to insist upon strict compliance with any provisions of this Agreement, or its failure to assert any right it may have hereunder, will not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement. | ||
| (d) | If any term, condition, or provision of this Agreement could be construed by a court of competent jurisdiction to be invalid, void, unreasonable or unenforceable, the parties request that the court interpret, construe and apply such term, condition, or provision in such a manner so as to render the term, condition, or provision valid, reasonable and enforceable. | ||
| (e) | If any term, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms, conditions, and provisions shall remain in full force and effect and not be affected, impaired or invalidated in any way. |
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Sworn to and Subscribed
Before Me this ____ day
of _____________, 2010.
Before Me this ____ day
of _____________, 2010.
Notary Public
|
EMPLOYEE | |||
| E-Mail: ____________________________________________ |
Date: ______________________________________, 2010
| Exide Technologies |
||||
| By: | ||||
| Title: | ||||
| Date: | ||||
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EXHIBIT A
INCOME PROTECTION STATEMENT
Applicable To Designated Senior Executives Reporting To
The Chief Executive Officer
The Chief Executive Officer
| I. | INTRODUCTION |
Unless otherwise specified in a written employment contract, employment at Exide Technologies is
at-will, such that either the employee or Exide have the right to terminate the employment
relationship for any or no reason, and at any time. At the same time, Exide believes that senior
level employees reporting to the Company’s Chief Executive Officer should, under certain
circumstances as set forth below, enjoy protection against income and benefits loss in the event of
employment termination.
| II. | INCOME PROTECTION PAY AND BENEFITS |
In the event of employment termination, any employee who has previously been expressly designated
as covered by this Income Protection Statement (“IPS”) in writing by the Executive Vice President,
Human Resources or the Chief Executive Officer (“vesting designation”) shall be eligible to
receive, as of the effective date of this IPS and subject to the terms below, one year (12 months)
of the employee’s annual base salary, and any bonus or portion thereof that has already been earned
at the time the termination occurs subject to and contingent upon the final terms and conditions of
such bonus plan. Any earnings or benefits that the employee receives subsequent to the termination
shall not reduce or mitigate the amount of earnings or benefits, respectively, received from Exide
under this IPS.
Salary continuation income protection payments will be made pursuant to Exide’s standard payroll
system and in the same fashion as the employee had been paid prior to the time of termination,
commencing with the first pay date following the sixtieth day after the termination of employment,
provided, however, if the employee is a “specified employee,” within the meaning of Section 409A of
the Code, as defined in Section VII, at the time of his or her termination of employment, such
payments shall commence on the first pay date on or after the first day of the seventh month
following the employee’s termination of employment. The first such payment shall include a make-up
payment equal to all income protection payments that would have been made to the employee from the
date of the employee’s termination of employment through date of payment absent the six-month
delay. The pro rata bonus amount will be paid when the bonus otherwise would be paid.
During the twelve month period following termination of employment, the Company will continue to
provide the vested participant’s health (medical, dental, vision and health care flexible
spending), AD&D and life insurance benefits in a manner substantially the same as those benefits
were provided immediately prior to the termination and at substantially the same cost to the
employee. During this twelve month period, the difference between the cost for benefit
continuation of coverage that the employee would be required to pay for such continuation coverage
under COBRA and the amount the employee is required to pay for such coverage during such period
will be considered imputed income to the employee. The employee will be responsible for the
payment of income tax as a result of such imputed income. During the period between termination of
employment and commencement of income protection payments, the employee will pay to the Company
monthly payments equal to the amount the employee is required to pay for such coverage during such
period; thereafter, the employee’s cost will be withheld from such income protection payments.
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CONFIDENTIAL
If an employee receiving income protection under this Income Protection Statement dies while
receiving income protection pay and/or other benefits but before he/she has received the total
amount of income protection pay and/or other benefits to which he/she is entitled, the remaining
portion will be paid to his/her beneficiary(ies).
Employees covered by this IPS shall also be entitled to exercise any vested stock option,
restricted stock, or other stock-based rights in accordance with Exide’s applicable policies.
| III. | ADDITIONAL CONDITIONS THAT MUST BE MET IN ORDER TO RECEIVE INCOME PROTECTION AND BENEFITS |
A. Waiver and Release Of Claims: In order to receive income protection
and benefits, an employee must execute and, where applicable, not revoke, on or before the
sixtieth day following the employee’s termination of employment, a waiver and release of
claims and agreement on confidentiality and non-competition in favor of Exide and in a form
and substance reasonably satisfactory to Exide.
B. Employment Must Be Terminated Under Qualifying Circumstances: An
employee is eligible to receive income protection and benefits only if employment is
terminated under “qualifying circumstances.” Qualifying circumstances exist when (1) Exide
terminates an employee’s employment without cause, or (2) where the employee resigns for a
good reason.
A “termination without cause” is a termination for any reason other than (1) an employee’s
willful and continued failure to substantially perform his or her duties (other than due to
physical or mental illness) or to comply with the reasonable policies of the Company as written
or as directed by the CEO, provided that if such failure is reasonably subject to cure, employee
has not cured the failure within thirty (30) days from receipt of notice of the failure from the
Company; (2) an act or omission that constitutes willful misconduct, gross negligence or fraud;
(3) non-de minimus misappropriation, embezzlement, or dishonesty; or (4) conviction of or
entering a plea of “guilty” or “no contest” to a felony.
A “resignation for a good reason” is a resignation for (l) a material adverse change in the
employee’s job title, role or responsibilities; (2) a reduction in base salary or other fixed
compensation or failure to pay or provide such compensation within thirty (30) days of when due;
(3) relocation of the employee’s place of business without reasonable business justification or
without reimbursement of reasonable and necessary relocation expenses; (4) material adverse
change in any pension, medical, health, savings, life insurance, or accident or disability plan,
except for changes affecting all similarly-situated employees.
| IV. | OUTPLACEMENT ASSISTANCE |
In addition to receiving income protection and benefits, employees whose employment ends under
qualifying circumstances are entitled to receive (1) outplacement assistance suitable to the
employee’s position and (2) individual tax and financial planning, at a total, combined cost not to
exceed $20,000 (Twenty Thousand Dollars), provided however that the benefits for individual tax and
financial planning shall not exceed 16,400 (Sixteen Thousand Four Hundred Dollars). Outplacement
assistance and individual tax and financial planning provided pursuant to this Section IV shall
terminate no later than December 31 of the second year following the year of the employee’s
termination of employment.
| V. | AMENDMENT OR REVOCATION |
No employee who has received a vesting designation (a “Vested Participant”) can, without the mutual
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consent of the Vested Participant and the Company, have his or her rights hereunder adversely
affected in the event this IPS is amended or revoked. Any revocation or amendment shall be
prospective in its effect, such that any amendment or revocation of this document would apply only
to employees, who at the time of such amendment or revocation, are not already Vested Participants.
| VI. | PRIOR PLANS OR POLICIES |
This IPS supersedes and replaces any prior severance plans, policies, or programs applicable to a
vested participant. To the extent there is any inconsistency or conflict between this Income
Protection Statement and Exide Technologies’ Post Separation Income Protection Plan for Salaried
Employees, the terms of this Income Protection Statement control.
| VII. | MISCELLANEOUS |
It is intended that this IPS and any ultimate release that may be executed pursuant to this IPS
meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
and same (i) shall be construed accordingly, (ii) to the extent necessary shall be deemed to be
amended to the extent necessary to comply with Section 409A of the Code, and (iii) shall be
operated in a manner to ensure such compliance. In the event it is determined by Exide that any
provision of this IPS would cause Employee to be subject to income tax prior to payment or any
additional tax penalties pursuant to Section 409A of the Code, such provisions shall be void ab
initio and of no effect and Exide shall adjust the timing and form of payments and benefits
hereunder to comply with Section 409A of the Code.
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