C&D TECHNOLOGIES, INC.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000
August 1, 1997
Xxxxx X. Xxxxx
000 Xxxxxx Xxxxxx XX
Xxxxxxxx, XX 00000
Dear Xx. Xxxxx:
C&D TECHNOLOGIES, INC., a Delaware corporation (the "Company"), agrees to employ
you, and you agree to accept such employment, under the following terms and
conditions:
1. TERM OF EMPLOYMENT.
1.1 Except for earlier termination as is provided in Section 10
below, your employment under this Agreement shall be for a
term (the "Initial Term") commencing on August 1, 1997 (the
"Effective Date") and terminating on July 31, 1998.
1.2 This Agreement shall be automatically renewed for successive
terms of one month each, unless either party shall have
given to the other party at least 30 days' prior written
notice of the termination of this Agreement. If such 30
days' prior written notice is given by either party, (i) the
Company shall, without any liability to you, have the right,
exercisable at any time after such notice is sent, to elect
any other person to the office or offices in which you are
then serving and to remove you from such office or offices,
but (ii) all other obligations each of you and the Company
have to the other, including the Company's obligation to pay
your compensation and make available the medical and dental
insurance which you are entitled hereunder, shall continue
until the date your employment terminates as specified in
such notice.
2. COMPENSATION.
2.1
You shall be compensated for all services rendered by you
under this Agreement at the rate of $140,000 per annum (such
salary, as it is from time to time adjusted, is herein
referred to as the "Base Salary"). Such Base Salary shall be
payable in periodic installations twice monthly
August 1, 1997
Page 2
in accordance with the Company's payroll practices for
salaried employees. The Compensation Committee of the Board
of Directors shall review such Base Salary prior to April
30, 1998 and each year thereafter during the term of this
Agreement, including any renewal term, and shall make such
adjustments, if any, as the Compensation Committee shall
determine; provided, however, that no adjustment shall
reduce the Base Salary below $140,000.
2.2 If your employment hereunder shall be terminated (i) by the
Company without Cause (as defined in Section 10.3) therefor
having been given to you (other than pursuant to Sections
10.1 or 10.2), or (ii) as a result of the non-renewal of
this Agreement by the Company upon expiration of the Initial
Term or any renewal term, then for a one year period after
the effective date of such termination the Company shall pay
you at the rate of your Base Salary in effect at the time of
such termination.
3. DUTIES.
3.1 During the term of your employment hereunder, including any
renewal thereof, you agree to serve as the Vice President
and General Manager PowerCom (Sales/Marketing) or in such
other capacity with duties and responsibilities of a similar
nature as those initially undertaken by you hereunder as the
President of the Company may from time to time determine.
Your duties may be changed at any time and from time to time
hereafter, upon mutual agreement, in a manner appropriate to
the Company for the times and circumstances for which the
change is to be made. You also agree to perform such other
services and duties consistent with the office or offices in
which you are serving and its responsibilities as may from
time to time be prescribed by the Board of Directors, and
you also agree to serve, if elected as an officer and/or
director of the Company, and/or any of the Company's other
direct or indirect subsidiaries, in all cases in conformity
to the by-laws of each such corporation. Unless you
otherwise agree, you will not be required to relocate from
[the Company's headquarters in the Blue Bell, Pennsylvania
area].
3.2 You shall devote your full employment energies, interest,
abilities, time and attention during normal business hours
(excluding the vacation periods provided in Section 4.2
below) exclusively to the business and affairs of the
Company, its parent corporation and subsidiaries, if any,
and shall not engage in any activity which conflicts or
interferes with the performance of duties hereunder.
August 1, 1997
Page 3
3.3 You agree to cooperate with the Company, including taking
such reasonable medical examinations as may be necessary, in
the event the Company shall desire or be required (such as
pursuant to the terms of any bank loan or any other
agreement) to obtain life insurance insuring your life.
3.4 You shall, except as otherwise provided herein, be subject to
the Company's rules, practices and policies applicable to the
Company's senior executive employees. Without limiting the
generality of the foregoing, you shall, with respect to the
Company and its parents, subsidiaries, assets and
stockholders, act in a manner consistent with your fiduciary
responsibilities as an executive of the Company.
4. BENEFITS.
4.1 You shall have the benefit of such life and medical
insurance, bonus, stock option and other similar plans as
the Company may have or may establish from time to time, and
in which you would be entitled to participate, by reason of
your position with the Company, pursuant to the terms
thereof. Also, to the extent you have met the qualifications
required, you many participate in the Company's Savings and
Retirement plans. The foregoing, however, shall not be
construed to require the Company to establish any such plans
or to prevent the Company from modifying or terminating any
such plans, and no such action or failure thereof shall
affect this Agreement.
4.2 You shall be entitled to a vacation of four weeks each year.
4.3 The Company will provide you with an annual physical
examination.
5. WORKING AND OTHER FACILITIES.
During the Initial Term of this Agreement and any renewal
term thereof, you shall be furnished with such working
facilities and other services as are suitable to your
position and adequate for the performance of your duties.
6. EXPENSES.
The Company will reimburse you for reasonable expenses
(consistent with Company policy), including traveling
expenses, incurred by you in connection with the business of
the Company, upon the presentation by you of appropriate
substantiation for such expenses.
August 1, 1997
Page 4
7. RESTRICTIVE COVENANTS.
7.1 During such time as you shall be employed by the Company,
and for a period of one year thereafter, you shall not,
without the written consent of the Board of Directors,
directly or indirectly become associated with, render
services to, invest in, represent, advise or otherwise
participate as an officer, employee, director, stockholder,
partner, agent of or consultant for, any business which is
competitive with the business in which the Company is
engaged at the time your employment with the Company ceases
(a "Competitive Business"); PROVIDED HOWEVER, that nothing
herein (i) shall prevent you from investing without limit in
the securities of any company listed on a national
securities exchange, PROVIDED that your involvement with any
such company is solely that of a stockholder, and (ii) is
intended to prevent you from being employed during the
one-year period following the termination of your employment
with the Company referred to herein by any business other
than a Competitive Business.
7.2 The parties hereto intend that the covenant contained in
this Section 7 shall be deemed a series of separate
covenants for each state, county and city. If, in any
judicial proceeding, a court shall refuse to enforce all the
separate covenants deemed included in this Section 7,
because, taken together, they cover too extensive a
geographic area, the parties intend that those of such
covenants (taken in order of the states, counties and cities
therein which are least populous), which, if eliminated,
would permit the remaining separate covenants to be enforced
in such proceeding, shall, for the purpose of such
proceeding, be deemed eliminated from the provisions of this
Section 7.
8. CONFIDENTIALITY, NON-INTERFERENCE, INVENTIONS AND PROPRIETARY
INFORMATION.
8.1 CONFIDENTIALITY. In the course of (i) your employment by the
Company hereunder, and (ii) your prior employment with the
Company, you will have and have had access to confidential
or proprietary data or information of the Company. You will
not at any time divulge or communicate to any person nor
shall you direct any company employee to divulge or
communicate to any person (other than to a person bound by
confidentiality obligations similar to those contained
herein and other than as necessary in performing your duties
hereunder) or use to the detriment
August 1, 1997
Page 5
of the Company any of such data or information. The
provisions of this Section 8.1 shall survive your employment
hereunder, whether by the normal expiration thereof or
otherwise. The term "confidential or proprietary data or
information" as used in this Agreement shall mean
information not generally available to the public,
including, without limitation, personnel information,
financial information, customer lists, supplier lists,
product and tooling specifications, trade secrets, product
composition and formulae, tools and dies, drawings and
schematics, manufacturing processes, knowhow, computer and
any other processed or collated data, computer programs,
pricing, marketing and advertising data.
8.2 NON-INTERFERENCE. You agree that you will not at any time
after the termination of your employment by the Company, for
your own account or for the account of any other person,
interfere with the Company's relationship with any of its
suppliers, customers or employees; PROVIDED that your
employment by a competitor of the Company, if not in
violation of your non-competition agreement contained in
Section 7.1 above, and your contacting of suppliers and
customers in connection therewith, if not in violation of
Section 8.1 above or Sections 8.3 or 8.4 below, shall not
constitute "interference" hereunder.
8.3 INVENTIONS. It is understood that you may, during your
employment, conceive or develop certain inventions,
innovations or discoveries related to any business in which
the Company may be engaged, either solely or jointly with
others. In connection with the conception or development
thereof, you agree to disclose promptly to the Company all
such inventions, innovations and discoveries, to assign, and
hereby do assign, to the Company all of your right, title
and interest in and to said inventions, innovations and
discoveries, and to do all things and sign all documents
deemed by the Company to be necessary or appropriate to vest
in it, its successors and assigns, all of your right, title
and interest in and to such inventions, innovations or
discoveries, and to procure for it, at the Company's
expense, patents, copyrights and/or trademarks covering such
inventions, innovations or discoveries in the United States
and its possessions and in foreign countries, at the
discretion and under the direction of the Company. In the
event the Company is unable for any reason to assure your
signature on such documents, you irrevocably appoint the
Company and its duly authorized officers and agents as your
agents and attorneys-in-fact to execute such documents and
to do such things with the same legal force and effect as if
executed or done by you.
August 1, 1997
Page 6
8.4 RETURN OF PROPERTY. All written materials, records and
documents made by you or coming into your possession during
your employment concerning any products, processes or
equipment, manufactured, used, developed, investigated or
considered by the Company or otherwise concerning the
business or affairs of the Company, shall be the sole
property of the Company, and upon termination of your
employment, or upon request of the Company during your
employment, you shall promptly deliver the same to the
Company. In addition, upon termination of your employment,
or upon request of the Company during your employment, you
shall promptly deliver the same to the Company. In addition,
upon termination of your employment, or upon request of the
Company during your employment, you will deliver to the
Company all other Company property in your possession or
under your control, including, but not limited to, financial
statements, marketing and sales data, patent applications,
drawings and other documents, and all Company credit cards
and automobiles.
9. EQUITABLE RELIEF. With respect to the covenants contained in Articles
7 and 8 of this Agreement, you agree that any remedy at law for any
breach of said covenants may be inadequate and that the Company shall
be entitled to specific performance or any other mode of injunctive
and/or other equitable relief to enforce its rights hereunder or any
other relief a court might award.
10. EARLIER TERMINATION. Your employment hereunder shall terminate prior
to the Initial Term (or any renewal term, in the event of renewal) on
the following terms and conditions:
10.1 This Agreement shall terminate automatically on the date of
your death. Notwithstanding the foregoing, if you die during
the terms of this Agreement, the Company shall (i) continue to
make payments to your estate of your Base Salary as then in
effect pursuant to this Agreement for six (6) months after
your death, and (ii) pay your estate any reimbursable expenses
which otherwise would have been paid to you to the date of
your death.
10.2 This Agreement shall be terminated if you are unable to
perform your duties hereunder for a period of any 180 days in
any 365 consecutive day period by reason of physical or mental
disability. Notwithstanding the foregoing, if this Agreement
is terminated pursuant to this Section, the Company shall pay
any accrued but unpaid Base Salary through the date of
termination and any reimbursable expenses due to you
hereunder. For purposes of this Agreement "physical or mental
disability" shall mean your inability, due to health reasons,
to discharge properly your duties of employment, supported by
the opinion of a physician satisfactory to both you and the
August 1, 1997
Page 7
Company. If the parties do not agree on a physician mutually
satisfactory to both of you and the Company within ten days of
written demand by one or the other, a physician shall be
selected by the president of the Pennsylvania Medical
Association, and the physician shall, within 30 days
thereafter, make a determination as to whether disability
exists and certify the same in writing. Services of the
physician shall be paid for by the Company. You shall fully
cooperate with the examining physician including submitting
yourself to such examinations as may be requested by the
physician for the purpose of determining whether you are
disabled.
10.3 This Agreement shall terminate immediately upon the Company's
sending you written notice terminating your employment
hereunder for Cause. The Company may terminate this Agreement
for Cause, but only after written notice specifying the Cause
of such action shall have been rendered to you by the
President of the Company. "Cause" shall mean any of the
following:
(i) Breach of this Agreement.
(ii) Refusal or inability (other than pursuant to Sections
10.1 or 10.2) to perform duties assigned in
accordance with the terms of this Agreement or overt
and willful disobedience of orders or directives
issued to you by the Company and within the scope of
your duties to the Company.
(iii) Willful misconduct in the performance of your duties,
functions and responsibilities.
(iv) Commission of acts which are illegal in connection
with the performance of your duties, functions and
responsibilities under this Agreement.
(v) Commission of acts which would constitute a felony
offense during the term of this Agreement.
(vi) Violation of Company rules and regulations concerning
conflict of interest.
(vii) Gross mismanagement of the assets of the Company.
(viii) Gross incompetence, gross insubordination or gross
neglect in the performance of your duties hereunder
or being under the habitual influence of alcohol
while on duty or possession, use, manufacture,
distribution, dispensation or sale of illegal drugs
while on or off duty.
August 1, 1997
Page 8
(ix) Any act or omission, whether or not included in the
foregoing, that a court of competent jurisdiction
would determine to constitute cause for termination.
If the Company terminates this Agreement for Cause under this
Section, the Company shall not be obligated to make any
further payments under this Agreement except for amounts due
at the time of such termination.
Existence of Cause shall be conclusively determined for all
purposes hereunder by the President of the Company. Such
advice and consultation shall be utilized as such officer
regards as appropriate, and no obligation or duty with respect
to any procedure or formality is created by this Agreement.
11. POST-EMPLOYMENT BENEFITS COVERAGE.
11.1 Your coverage under the benefits program provided by the
Company will cease effective on your termination date. You
will be entitled to elect continuation of your medical and
dental benefits at the same cost the Company pays, pursuant to
the provisions of the Consolidated Omnibus Budget
Reconciliation Act (COBRA). Details with regard to COBRA
continuation coverage will be provided to you shortly after
your termination date.
11.2 Life Insurance coverage will cease upon your termination date.
You may, however, apply to General American Life Insurance
Company (or such other insurance company as may provide group
life insurance to the Company's employees at the time) for an
individual converted life policy, with such application and
payment of the first premium required to be accomplished
within 31 days after your termination date. Details regarding
this conversion option will be provided to you shortly after
your termination date.
11.3 Accidental Death and Dismemberment and Long Term Disability
coverages cease with your termination date and may not be
extended or converted.
12. TERMINATION OF PRIOR AGREEMENTS; MODIFICATION. This Agreement
constitutes the full and complete understanding of the parties, and
will, on the Effective Date, supersede all prior agreements and
understandings, oral or written, between the parties. This Agreement
may not be modified or amended except by an instrument in writing
signed by the party against which enforcement thereof may be sought.
August 1, 1997
Page 9
13. ENTIRE AGREEMENT. Each party to this Agreement, acknowledges that no
representations, inducements, promises or agreements, oral or written,
have been made by either party or anyone acting on behalf of either
party, which are not embodied herein and that no other agreement,
statement or promise not contained in this Agreement shall be valid or
binding.
14. SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction.
15. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as a
waiver of any subsequent breach.
16. NOTICES. All notices hereunder shall be in writing and shall be sent by
express mail or by certified or registered mail, postage prepaid,
return receipt requested; if to you, to your residence as listed in the
Company's records; and if to the Company, to the address set forth
above with copies to the President.
17. ASSIGNABILITY; BINDING EFFECT. This Agreement shall not be assigned by
you without the written consent of the Board of Directors of the
Company. This Agreement shall be binding upon and inure to the benefit
of you, your legal representatives, heirs and distributees, and shall
be binding upon and inure to the benefit of the Company, its successors
and assigns.
18. GOVERNING LAW. All questions pertaining to the validity, construction,
execution and performance of this Agreement shall be construed and
governed in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to the conflicts or choice of law
provisions thereof.
19. HEADINGS. The headings of this Agreement are intended solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
August 1, 1997
Page 10
If this Agreement correctly sets forth our understanding, please sign the
duplicate original in the space provided below and return it to the Company,
whereupon this shall constitute the employment agreement between you and the
Company effective and for the term as stated herein.
C&D TECHNOLOGIES, INC.
By: /S/ XXXXXX XXXXX
Xxxxxx Xxxxx
Chairman, President and Chief Executive Officer
Agreed as of the date first above written:
/S/ XXXXX X. XXXXX
Xxxxx X. Xxxxx
