EXHIBIT 10.9
Conformed Copy
EXECUTIVE EMPLOYMENT AGREEMENT
(as amended June 14, 2002)
THIS AGREEMENT entered into as of the 1st day of September 2001, by and
between Exide Technologies (the "Company"), and Xxxxx X. Xxxxxxxxxx (the
"Executive").
WHEREAS, the Company wishes to employ the Executive and the Executive
wishes to be employed by the Company.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Employment Term. The "Employment Term" shall commence on the date
first written above (the "Effective Date") and, unless previously terminated in
accordance with Section 7 hereof; shall expire on the third anniversary of the
Effective Date. The Employment Term shall automatically be extended for one (1)
year on each anniversary of the Effective Date unless either the Company or the
Executive shall have given written notice to the other at least ninety (90) days
prior thereto that the Employment Term shall not be so extended.
2. Employment.
(a) Subject to the provisions of Section 7 hereof, the Company
agrees to continue to employ the Executive and the Executive agrees to remain in
the employ of the Company during the Employment Term. During the Employment
Term, the Executive shall be employed as the Chief Executive Officer of the
Company or in such other senior executive capacity as may be mutually agreed to
in writing by the parties. The Executive shall perform the duties, undertake the
responsibilities and exercise the authority customarily performed, undertaken
and exercised by persons situated in a similar executive capacity. He shall also
promote, by entertainment or otherwise, the business of the Company.
(b) During the Employment Term, excluding periods of vacation
and sick leave to which the Executive is entitled, the Executive agrees to
devote his full business time to the business and affairs of the Company to the
extent necessary to discharge the responsibilities assigned to be Executive
hereunder. The Executive may (1) serve on corporate, civil or charitable boards
or committees and (2) manage personal investments so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities hereunder. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the Executive prior to
the Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company.
3. Compensation.
(a) Base Salary. During the Employment Term, the Company agrees
to pay or cause to be paid to the Executive an annual base salary of $700,000 or
as may be increased
from time to time (the "Base Salary"). Such Base Salary shall be payable in
accordance with the Company's customary practices applicable to its executives.
(b) Annual Bonus. In addition to Base Salary, the Executive
shall be eligible to receive, with respect to each fiscal year ending during the
Employment Term, an annual bonus (the "Annual Bonus") under the terms of the
Company's then applicable annual bonus plan. The Executive's Annual Bonus shall
have a target amount equal to 100% of his Base Salary.
(c) Long-Term Incentives. During the Employment Term, the
Executive shall be eligible to receive such long-term incentives (e.g., stock
options and restricted stock) as shall be determined by the Company's Board of
Directors (the "Board") in its sole discretion.
4. Employee Benefits. During the Employment Term, the Executive shall
be entitled to participate in all employee benefit plans, practices and programs
maintained by the Company and made available to senior executives generally,
including, without limitation, all pension, retirement, supplemental retirement,
profit sharing, savings, medical, hospitalization, disability, dental, life or
travel accident insurance benefit plans. Unless otherwise provided herein, the
compensation and benefits under, and the Executive's participation in, such
plans, practices and programs shall be on the same basis and terms as are
applicable to senior executives of the Company generally.
5. Vacation and Sick Leave.
(a) The Executive shall be entitled to annual vacation in
accordance with the policies as periodically established by the Board for
similarly situated executives of the Company.
(b) The Executive shall be entitled to sick leave (without loss
of pay) in accordance with the Company's policies as in effect from time to
time.
6. Termination. During the Employment Term, the Executive's
employment hereunder may be terminated under the following circumstances:
(a) Cause. The Company may terminate the Executive's employment
for "Cause." For purposes of this Agreement "Cause" shall mean:
(i) the failure by the Executive to substantially perform
the Executive's duties with the Company (other than any such failure resulting
from the Executive's incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed the Executive's
duties, (ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its Affiliates,
monetarily or otherwise or (iii) a breach of any of the Executive's covenants
set forth in Section 10 hereof. For purposes of clauses (i) and (ii) of this
definition, no act, or failure to act, on the Executive's part shall be deemed
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's act, or failure to act, was
in the best interest of the Company.
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(b) Disability. The Company may terminate the Executive's
employment after having established the Executive's Disability. For purposes of
this Agreement, "Disability" means a physical or mental infirmity which impairs
the Executive's ability to substantially perform his or her duties under this
Agreement for six (6) consecutive months. The Executive shall be entitled to the
compensation and benefits provided for under this Agreement for any period
during the Employment Term and prior to the establishment of the Executive's
Disability during which the Executive is unable to work due to a physical or
mental infirmity. Notwithstanding anything contained in this Agreement to the
contrary, until the Termination Date specified in a Notice of Termination (as
each term is hereinafter defined) relating to the Executive's Disability, the
Executive shall be entitled to return to his other position with the Company as
set forth in this Agreement in which event no Disability of the Executive will
be deemed to have occurred.
(c) Good Reason. The Executive may terminate his employment
hereunder for "Good Reason." For purposes of this Agreement, "Good Reason" shall
mean the occurrence of any of the following events or conditions without the
Executive's prior written consent:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which represents a
materially adverse change from his other status, title, position or
responsibilities as in effect immediately prior thereto;
(ii) a reduction in the Executive's Base Salary;
(iii) the failure of the Company to obtain from its
Successors or Assigns the express assumption and agreement required under
Section 12 hereof; or
(iv) any purported termination of the Executive's
employment by the Company which is not effected pursuant to a Notice of
Termination satisfying the terms set forth in the definition of Notice of
Termination.
(d) Voluntary Termination. The Executive may voluntarily
terminate his or her employment hereunder at any time by providing ninety (90)
days' written notice of termination to the Company. In addition, the Company may
voluntarily terminate the Executive's employment hereunder without Cause at any
time by providing ninety (90) days' written notice of such termination to the
Executive.
7. Compensation Upon Termination. Upon termination of the Executive's
employment during the Employment Term, the Executive shall be entitled to the
benefits set forth below.
(a) If the Executive's employment with the Company shall be
terminated (1) by the Company for Cause, death or Disability or (2) by the
Executive voluntarily other than for Good Reason, the Company shall pay the
Executive all amounts earned or accrued through the Termination Date but not
paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement
for reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date, (iii) vacation pay,
and (iv) sick leave (collectively, "Accrued Compensation"). In addition to the
foregoing, if the Executive's employment is terminated by the Company for
Disability or by reason of the Executive's death,
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the Company shall pay to the Executive or his or her beneficiaries an amount
equal to the "Pro Rata Bonus" (as hereinafter defined). The "Pro Rata Bonus" is
an amount equal to the Executive's target bonus under the Company's annual bonus
plan ("Target Bonus") multiplied by a fraction the numerator of which is the
number of days in such fiscal year through the Termination Date and the
denominator of which is 365. The Executive's entitlement to any other
compensation or benefits shall be determined in accordance with the Company's
employee benefit plans and other applicable programs and practices then in
effect. All amounts provided for in this Section 7(a) shall be paid to the
Executive in a lump sum within ten (10) business days of the Termination Date.
(b) If the Executive's employment with the Company shall be
terminated, (1) by the Company other than for Cause, death or Disability or (2)
by the Executive for Good Reason, the Executive shall be entitled, upon
execution of a waiver and general release of claims in a form reasonably
acceptable to the Company, to the following:
(i) the Company shall pay the Executive all Accrued
Compensation and a Pro-Rata Bonus in a lump sum within ten (10) business days of
the Termination Date;
(ii) for thirty-six (36) months from the Termination Date
(the "Continuation Period"), the Company shall pay the Executive, Base Salary
and Annual Bonus;
(iii) for the "Continuation Period", the Company shall at
its expense continue on behalf of the Executive and his or her dependents and
beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits provided to the Executive prior to the Termination
Date. The coverage and benefits (including deductibles and costs) provided in
this Section 7(iii) during the Continuation Period shall be no less favorable to
the Executive and his or her dependents and beneficiaries, than the most
favorable of such coverages and benefits provided during the Employment Term.
The Company's obligation hereunder with respect to the foregoing benefits shall
be limited to the extent that the Executive obtains any such benefits pursuant
to a subsequent employer's benefit plans, in which case the Company may reduce
the coverage of any benefits it is required to provide the Executive hereunder
so long as the aggregate coverages and benefits of the combined benefit plans is
no less favorable to the Executive than the coverages and benefits required to
be provided hereunder. This subsection (iii) shall not be interpreted so as to
limit any benefits to which the Executive, his or her dependents or
beneficiaries may otherwise be entitled under any of the Company's employee
benefit plans, programs or practices following the Executives termination of
employment, including without limitation, retiree medical and life insurance
benefits;
(iv) notwithstanding any plan or agreement to the contrary,
upon a termination pursuant to this Section 7(b): any unvested stock options
under any applicable Company plan shall vest and the Executive will have an
extended post-termination period to exercise these options of 36 months; and
(v) professional outplacement services.
8. Mitigation and Offset. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment; provided, however
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that (a) any payments that the Executive becomes entitled to receive under
Section 7(b) above shall be reduced by the amount of any compensation the
Executive becomes entitled to receive from any entity to which the Executive
provides services on or after the Termination Date and (b) any benefits that the
Executive is otherwise entitled to receive under Section 7(b) above shall be
reduced (if at all) by any comparable benefits that the Executive is then
receiving or is then entitled to receive from any entity to which the Executive
provides employment or consulting services on or after the Terminate Date.
9. Exclusivity of Severance Payments Hereunder.
The severance pay and benefits provided for in this Agreement
shall be in lieu of (i) any other severance pay to which the Executive may be
entitled under any Company severance plan, program or arrangement. The severance
pay and benefits provided for in this Agreement shall be reduced by an amount
equal to any payment the Executive is entitled to receive from the Company in
connection with his termination of employment (including, without limitation,
pay in lieu of notice) pursuant to any governmental law, rule or regulation.
10. Interaction with Change in Control Agreement.
If a Change of Control (as defined in the Executive's Change in
Control Agreement with the Company) occurs during both the Term of the
Executive's Change in Control Agreement and the Employment Term, this Agreement
shall be tolled for the remainder of the Term of the Executive's Change in
Control Agreement. If, prior to a Change in Control the Executive's employment
is terminated in circumstances entitling him to payments and benefits under both
this Agreement and his Change in Control Agreement, he shall only be entitled to
receive the payments and benefits provided for under his Change in Control
Agreement.
11. Covenants of the Executive.
(a) Ownership and Return of Documents. The Executive agrees that
all memoranda, notes, records, papers or other documents and all copies thereof
relating to the operations or business of the Company, some of which maybe
prepared by the Executive, and all objects associated therewith in any way
obtained by the Executive shall be the Company's property. The Executive shall
not, except for the Company's use, copy or duplicate any of the aforementioned
documents or objects, nor remove them from the Company's facilities nor use any
information concerning them except for the Company's benefit, either during the
Executive's employment or thereafter. The Executive agrees that the Executive
will deliver all of the aforementioned documents and objects that may be in his
or her possession to the Company upon termination of the Executive's employment,
or at any other time on the Company's request.
(b) Confidential Information. In connection with his employment
at the Company, the Executive will have access to Trade Secrets. During and
after his employment by the Company, regardless of the reasons that such
employment ends, the Executive agrees:
(i) To hold all Trade Secrets in confidence and not
discuss, communicate or transmit to others, or make any unauthorized copy of or
use the Trade Secrets in
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any capacity, position or business except as it directly relates to the
Executive's employment by the Company;
(ii) To use the Trade Secrets only in furtherance of proper
employment related reasons of the Company to further the interests of the
Company;
(iii) To take all reasonable actions that the Company deems
necessary or appropriate to prevent unauthorized use or disclosure of or to
protect the interest of the Company in the Trade Secrets; and
(iv) That any of the Trade Secrets, whether prepared by the
Executive or which may come into the Executive's possession during the
Executive's employment hereunder, are and remain the property of the Company,
and all such Trade Secrets, including copies thereof, together with all other
property belonging to any of the Company or its Affiliates, or used in its
respective businesses, shall be delivered to or left with the Company.
This Agreement does not apply to (A) information that by means other
than the Executive's deliberate or inadvertent disclosure becomes well known to
the public; or (B) disclosure compelled by judicial or administrative
proceedings after the Executive diligently tries to avoid each disclosure and
affords the Company the opportunity to obtain assurance that compelled
disclosures will receive confidential treatment.
(c) Non-Competition. By and in consideration of the Company's
entering into this Agreement and the compensation and benefits to be provided by
the Company hereunder, and further in consideration of the Executive's exposure
to the proprietary information of the Company and its Affiliates, the Executive
agrees that he will not, during the Employment Term and if his employment
hereunder is terminated (a) by the Company for Cause or Disability or (b) by him
other than for (Good Reason, for a period of three (3) years thereafter,
directly or indirectly, own, manage, operate, join, control, be employed by, or
participate in the ownership, management, operation or control of, or be
connected in any manner, including, without limitation, holding the position of
shareholder, director, officer, consultant, independent contractor, employee,
partner, or investor, with any Competing Enterprise. For purposes of this
paragraph, the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in a business in the United States which is
in competition, directly or indirectly, with any of the businesses of the
Company or any of its Affiliates as of the Termination Date. Notwithstanding the
foregoing, the Executive may invest in stocks, bonds or other securities of any
venture or entity if (1) such stocks, bonds or securities are listed on any
national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934 and (2) his investment does not
exceed five (5) percent of the issued and outstanding shares, or, in the case of
other securities, five (5) percent of the aggregate principal amount thereof
issued and outstanding.
(d) Non-Solicitation. During the Employment Term and for a
period of three (3) years thereafter, the Executive shall not interfere with the
Company's relationship with, or endeavor to entice away from the Company (other
than pursuant to general, non-targeted public media advertisements), any person
who is or was an employee or customer of the company or who otherwise had a
material business relationship with the Company.
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12. Definitions. In addition to other terms defined herein, the
following terms shall he defined as follows:
"Affiliate" shall mean any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by operation
of law or otherwise.
"Notice of Termination" shall mean a written notice of
termination of the Executive's employment, signed by the Executive if to the
Company or by a duly authorized officer of the Company if to the Executive,
which indicates the specific termination provision in this Agreement, if any,
relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. Any purported termination by the
Company or by the Executive shall be communicated by written Notice of
Termination to the other. For purposes of this Agreement, no such purported
termination of employment shall be effective without such Notice of Termination.
"Subsidiary" shall mean any corporation or other entity in
which the Company has a direct or indirect ownership interest of 50% or more of
the total combined voting power of the then outstanding securities or interests
of such corporation or other entity entitled to vote generally in the election
of directors or in which the company has the right to receive 50% or more of the
distribution of profits or 50% or the assets on liquidation or dissolution.
"Successors and Assigns" shall mean, respect to the Company,
a corporation or other entity acquiring all or substantially all the assets and
business of the Company, as the case may be (including this Agreement), whether
by operation of law or otherwise.
"Termination Date" shall mean (a) in the case of the
Executive's death, his date of death, (b) if the Executive's employment is
terminated for Disability, thirty (30) days after Notice of Termination is given
(provided that the Executive shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period) and (c) if the
Executive's employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause shall
not be less than thirty (30) days, and in the case of a termination for Good
Reason shall not be less than ninety (90) days, from the date such Notice of
Termination is given); provided, however, that if within thirty (30) days after
any Notice of Termination is given the party receiving such Notice of
Termination in good faith notifies the other party that a dispute exists
concerning the basis for the termination, the Termination Date shall be the date
on which the dispute is finally determined, either by mutual written agreement
of the parties, or by the final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been taken). Notwithstanding the pendency of any such dispute, the
Company shall continue to pay the Executive his or her Base Salary and continue
the Executive as a participant in all compensation, incentive, bonus, pension,
profit sharing, medical, hospitalization, dental, life insurance and disability
benefit plans in which he or she was participating when the notice giving rise
to the dispute was given, until the dispute is finally resolved in accordance
with this Section whether or not the dispute is resolved in favor of the
Company, and the Executive shall not be
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obligated to repay to the Company any amounts paid or benefits provided pursuant
to this sentence.
"Trade Secrets" shall mean any of the following:
"Financial Information," including, but not limited to,
information relating to earnings, assets, debts, prices, pricing structure,
volume of purchases or sales or other financial data whether related to the
Company generally, or to particular products, services, geographic areas, or
time periods;
"Supply and Service Information," including, but not limited
to, information relating to goods and services, suppliers' names or addresses,
terms of supply or service contracts or of particular transactions, or related
information about potential suppliers, and the extent that the combination of
suppliers or use of a particular supplier, though generally known or available,
yields advantages to the Company, details of which are not generally known;
"Marketing Information," including, but not limited to,
information relating to details about ongoing or proposed marketing programs or
agreements by or on behalf of the Company, sales forecasts, advertising formats
and methods or results of marketing efforts or information about impending
transactions;
"Personal Information," including, but not limited to,
information relating to employees' personal or medical histories, compensation
or other terms of employment actual or proposed promotions, hirings,
resignations, disciplinary actions, terminations or reasons therefor, training
methods, performance, or other employee information; and
"Customer Information," including, but not limited to,
information relating to past, existing or prospective customers, their addresses
or backgrounds, records of agreements and prices, proposals or agreements
between customers and the Company, status of customers' accounts or credit, or
related information about actual or prospective customers as well as customer
lists.
13. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company and its Successors and Assigns, and the Company shall
require any Successor or Assign to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. The
term "Company" as used herein shall include such Successors and Assigns.
(b) Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, his or her beneficiaries
or legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal personal representative.
14. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement (including the Notice of
Termination) shall be in writing and
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shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses last given by each party to the other, provided that all
notices to the Company shall be directed to the attention of the Board with a
copy to the Secretary of the Company. All notices and communication shall be
deemed to have been received on the date of delivery thereof or on the third
business day after the mailing thereof, except that notice of change of address
shall be effective only upon receipt.
15. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of its
subsidiaries and for which the Executive may qualify, nor shall anything herein
limit or reduce such rights as the Executive may have under any other agreements
with the Company or any of its subsidiaries. Amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any plan or
program of the Company or any of its subsidiaries shall be payable in accordance
with such plan or program, except as explicitly modified by this Agreement.
16. Set-off. The Company's obligations hereunder shall not be affected
by any circumstances, including, without limitation, any set-off, counterclaim,
defense, recoupment, or other right which the Company may have against the
Executive or others.
17. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver or similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
18. Withholding Taxes. The Company may withhold from all payments due
to Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
19. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any Subsidiary.
20. Each Party the Drafter. This Agreement and the provisions contained
in it shall not be construed or interpreted for or against any party to this
Agreement because that party drafted or caused that party's legal representative
to draft any of its provisions.
21. Counterparts. This Agreement may be executed in counterparts, each
of which shell be deemed to be an original and all of which together shall
constitute one and the same instrument.
22. Section and Headings. The division of this Agreement into sections
and the insertion of headings are for the convenience of reference only and
shall not affect the construction or interpretation of this Agreement. The terms
"this Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular section or
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other portion hereof. Unless something in the subject matter or context is
inconsistent therewith, references to sections and clauses are to sections and
clauses of this Agreement.
23. Number. In this Agreement, words importing the singular number only
shall include the plural and vice versa, and words importing the masculine
gender shall include the feminine and neuter genders and vice versa, and words
importing persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
24. Independent Advice. The Company and the Executive acknowledge and
agree that they have each obtained independent legal advice in connection with
this Agreement and they further acknowledge and agree that they have read,
understand and agree with all of the terms hereof and that they are executing
this Agreement voluntarily and in good faith.
25. Copy of Agreement. The Executive hereby acknowledges receipt of a
copy of this Agreement duly signed by the Company.
26. Termination Prior to Effective Date. In the event of a termination
of employment of the Executive prior to the Effective Date, this Agreement shall
be terminated and shall have no further force or effect.
27. Currency. All dollar amounts set forth or referred to in this
Agreement refer to U.S. currency.
28. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware without giving
effect to the conflict of law principles thereof. Any action brought by any
party of this Agreement shall be brought and maintained in a court of competent
jurisdiction in Xxxxxx County of the State of New Jersey.
29. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
30. Entire Agreement. This Agreement and the Executive's Change in
Control Agreement constitute the entire agreement between the parties hereto and
supersedes all prior agreements, if any, understandings and arrangements, oral
or written, between the parties hereto with respect to the subject matter hereof
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by it duly authorized officer and the Executive has executed this Agreement as
of the day and year first above written.
EXIDE TECHNOLOGIES
By: /s/
------------------------------
Chairman and CEO:
Xxxxxx X. Xxxx
00
WITNESS:
By: /s/
---------------------------------
Xxxxx X. Xxxxxxxxx
ATTEST:
By: /s/
---------------------------------
Secretary:
Xxxx X. Xxx Xxxx
By: /s/
------------------------------
Xxxxx X. Xxxxxxxxxx
WITNESS:
By: /s/
---------------------------------
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