Exhibit 10.23
AGREEMENT AND RELEASE
This is an Agreement and Release ("Agreement") between Xxxx X. Xxxxxx ("Xx.
Xxxxxx") and C&D Technologies, Inc. (referred to herein as "C&D" or "Company").
WITNESSETH
WHEREAS, Xx. Xxxxxx is the Vice President, Human Resources for C&D;
WHEREAS, Xx. Xxxxxx and C&D are parties to that certain employment
agreement dated March 31, 2000, as amended April 6, 2000 (collectively, the
"Employment Agreement"); and
WHEREAS, C&D has elected to terminate the Employment Agreement and the
employment relationship and to amicably settle and resolve the terms of the
separation from employment of Xx. Xxxxxx as an officer of C&D.
NOW, THEREFORE, Xx. Xxxxxx and C&D, intending to be legally bound and in
consideration of the mutual promises set forth below, hereby agree as follows.
1. TERMS OF CONTINUATION AND TERMINATION OF EMPLOYMENT.
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a. Xx. Xxxxxx'x employment by C&D will terminate on the earlier of
(i) the date that Xx. Xxxxxx commences full time employment with any third
party; or (iii) April 1, 2003 (hereinafter the "Effective Date"). C&D agrees
that Xx. Xxxxxx may be engaged in interim, part time or temporary employment or
consulting provided that such employment or consulting does not interfere with
the performance of his duties and obligations to C&D as set forth in this
Agreement. C&D will characterize Xx. Xxxxxx'x termination of employment with C&D
as having terminated at the conclusion of the term of his employment agreement;
however, for purposes of Xx. Xxxxxx'x participation in the C&D Stock Option
Plan(s), his termination shall be deemed to be an involuntary termination.
b. Xx. Xxxxxx will be paid, in accordance with the regular payroll
practices of C&D, his regular salary through April 1, 2003, subject to standard
deductions, including, as appropriate, those which are consistent with the
provisions of Xx. Xxxxxx'x then applicable Form W-4. Xx. Xxxxxx'x salary shall
not be subject to reduction for unpaid Company furloughs.
c. Beginning March 1, 2002 (the "Transition Date") and until the
Effective Date, Xx. Xxxxxx'x job title shall be Vice President, Industrial
Relations; however, commencing on the Transition Date, Xx. Xxxxxx shall not be
required to regularly attend work, but shall perform the job duties described
herein. Such job duties shall include continuing negotiation of the labor
agreement for affected employees at the Company's Huguenot, New York facility
and union matters at the Conshohocken, Pennsylvania facility, unless otherwise
notified. Xx. Xxxxxx shall additionally provide thirty hours of additional
services to C&D at no charge; such duties to be assigned to him by any of the
following: the CEO, Vice President, General Counsel or a member of the C&D Board
of Directors. If C&D requests that Xx. Xxxxxx provide services in excess of
thirty hours on behalf of C&D, he shall be paid at a rate of $75.00 per hour,
and reimbursed for reasonable, customary, properly documented expenses. To
enable
Xx. Xxxxxx to provide the services contemplated in this paragraph 1(c), C&D
shall provide Xx. Xxxxxx, through the Effective Date, either at his home or at
such other location as may be mutually agreed between the parties, continued use
of Company voice mail and e-mail and such office equipment as may be reasonably
required. Upon the Effective Date, Xx. Xxxxxx shall return the equipment in good
condition, reasonable wear and tear excepted, or may purchase some or any of it
at its then-current book value in C&D's records.
d. Following the Effective Date, Xx. Xxxxxx shall refrain from
communicating with any employee, customer, supplier or any other party with whom
C&D has a commercial relationship regarding the details of his employment or the
anticipated cessation thereof or the subject matter of this Agreement without
the prior written consent of Xxxx X. Xxxxxxx, Xx. or the C&D Board of Directors,
other than to say that the relationship between Xx. Xxxxxx and C&D is being or
was terminated amicably.
e. Xx. Xxxxxx and C&D hereby agree to refrain from making any
negative, disparaging, defamatory or slanderous comments, references or
characterizations concerning the other party and, in Xx. Xxxxxx'x case,
concerning C&D's officers, directors, employees, agents, products or services,
either verbally, in writing, or in any other manner, to any third party for any
purpose whatsoever, unless a legal duty to do so is imposed.
f. Xx. Xxxxxx shall be entitled to one executive physical examination
prior to the Effective Date in accordance with applicable C&D policy.
g. C&D shall pay to a reputable firm of Xx. Xxxxxx'x choice up to a
maximum of $10,000 for outplacement services and career development assistance
and shall reimburse Xx. Xxxxxx for up to $1,500 in documented expenses for
subscriptions and materials related to career development. This financial
support shall be available for a period of twelve (12) months from the
Transition Date.
h. Xx. Xxxxxx shall be entitled to receive a success bonus provided
that the labor negotiations at Huguenot are successfully completed. The success
bonus will be paid as follows: A $5,000 non-refundable bonus advance will be
paid on March 15, 2002 and the balance ($15,000) will be paid, if earned, on the
Effective Date. In order to be entitled to receive the success bonus, Xx. Xxxxxx
must then be in C&D's employ under the terms of this Agreement. Should Xx.
Xxxxxx not be employed by C&D as of the date of successful completion of the
Huguenot contract, he will not be entitled to the second installment of the
success fee.
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2. FRINGE BENEFITS.
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a. Through the Effective Date, Xx. Xxxxxx may continue to participate
in the Company's medical, dental, and life insurance programs at the same level
and costs as Xx. Xxxxxx participated on Transition Date. Thereafter, Xx. Xxxxxx
may continue, at his expense, his medical and dental insurance benefits to the
extent permitted by the Consolidated Omnibus Budget Reconciliation Act
("COBRA").
b. Xx. Xxxxxx'x accrued vacation days shall be subsumed in the paid
time through the Effective Date. No additional vacation time shall accrue or be
paid for by C&D.
c. Through the Effective Date, Xx. Xxxxxx may continue to participate
in the C&D Savings Plan and Pension Plan for salaried employees in accordance
with the terms and provisions of the respective Plans as they may be amended
from time to time. For purposes of calculating Xx. Xxxxxx'x applicable benefits
under the C&D retirement plans, C&D agrees that Xx. Xxxxxx will be deemed to
have worked for at least 1000 hours during all plan years prior to the Effective
Date. Xx. Xxxxxx may also continue to participate in the Deferred Compensation
Plan in accordance with the terms of the plan. Xx. Xxxxxx may also continue to
participate in the Supplemental Executive Retirement Plan in accordance with the
terms of the plan through the Effective Date.
d. Xx. Xxxxxx may exercise options, granted to him under any C&D
Stock Option Plan, which have vested or which may vest on or prior to the
Effective Date in accordance with the terms and provisions of the applicable
Plans and consistent with the characterization of his termination of employment
with C&D as an involuntary resignation on the Effective Date; however, Xx.
Xxxxxx shall not be recommended for any additional stock option grants either
prior to or following the Transition Date, nor shall he be required to comply
with the Company's applicable stock ownership guidelines. Through the Effective
Date, Xx. Xxxxxx may, from time to time, be considered an "insider" as defined
in the C&D Xxxxxxx Xxxxxxx Policy, as it may be amended from time to time;
provided, however, that following the Transition Date he shall not be considered
an Executive Officer for Section 16 reporting purposes under the Securities
Exchange Act of 1934. Notwithstanding the foregoing, Xx. Xxxxxx may have
continuing reporting obligations under Section 16 with respect to purchases and
sales of C&D stock that occur within six months after an opposite way
transaction that preceded the date of this Agreement and he remains subject to
the Company's xxxxxxx xxxxxxx policy; accordingly, all purchases and sales of
C&D stock must be pre-cleared with either of the Vice President, Finance or Vice
President, General Counsel of C&D. Provided that Xx. Xxxxxx is not then
possessed or aware of any material inside information regarding the Company and
that it otherwise lawful for him to do so, following the Effective Date, Xx.
Xxxxxx will be permitted to exercise options (in accordance with the terms and
provisions of the applicable stock option plan) outside of a C&D "window period"
as such term is defined in the Company's xxxxxxx xxxxxxx policy.
e. Xx. Xxxxxx will not receive any payments under the FY 2002
Management Incentive Compensation Plan. Xx. Xxxxxx'x eligibility to participate
in the Management incentive compensation plan for FY'03 shall be at the sole
discretion of the Company.
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f. Xx. Xxxxxx shall not be eligible to continue to receive
reimbursement for executive financial planning assistance following the
Effective Date. Xx. Xxxxxx shall be eligible for reimbursement for executive
financial planning assistance for fees reasonably incurred before the Effective
Date.
g. All other employee benefits not specifically continued by this
Agreement shall terminate on the Effective Date.
3. EXECUTION OF A RELEASE BY XX. XXXXXX.
------------------------------------
In consideration of the additional consideration described in
Paragraphs 1(a), (b), (c), (f), (g) and (h), and 2 (a), (c), (d) and (f) hereof,
which Xx. Xxxxxx acknowledges that C&D is not obligated to pay or otherwise
provide for Xx. Xxxxxx agrees to execute the Release which is attached hereto as
Exhibit A within five (5) days following the Effective Date.
4. GENERAL RELEASE.
---------------
After having had a reasonable opportunity to review this Agreement
and an opportunity to consult with an advisor or an attorney of his choice, Xx.
Xxxxxx, on his own behalf, and on behalf of his heirs, administrators, and
assigns, knowingly and voluntarily releases, remises and forever discharges C&D,
its subsidiary and related companies and their predecessors, successors and
assigns, and each of their respective officers, directors, employees, agents and
attorneys and all those charged or chargeable with liability on their behalf
(collectively "Releasees"), from any and all rights or claims, of any nature
whatsoever whether known or unknown which he has or may have against Releasees,
including, but not limited to those rights or claims arising out of or in any
way connected with Xx. Xxxxxx'x employment by C&D or his separation from
employment by C&D, claims for wages, stock or profits, claims of wrongful
discharge in violation of public policy or on any other grounds, breach of
contract (whether express or implied), breach of the covenant of good faith and
fair dealing, intentional or negligent infliction of emotional distress,
defamation, negligence, misrepresentation, fraud, violation of public policy,
other torts (whether based on statute or common law), claims for payment of
attorneys' fees (whether based on contract, statute or common law), claims of
discrimination on the basis of race, gender, color, religion, marital status,
national origin, handicap or disability, or veteran's status, and any and all
claims arising out of or relating to any federal, Pennsylvania, other state or
local statutes, ordinances, regulations, orders or common law, labor relations,
fair employment and equal employment opportunity laws, Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. ss. 2000e-1, ET SEQ., 42 U.S.C. ss.
1981-1988, the Americans With Disabilities Act, 42 U.S.C. ss. 12101, ET SEQ.,
the Family and Medical Leave Act of 1993, the Employee Retirement Income
Security Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of
1985, the National Labor Relations Act, the Fair Labor Standards Act, the
Occupational Safety and Health Act and the Pennsylvania Human Relations Act, 43
P.S. ss. 951 ET SEQ. that Xx. Xxxxxx now has or ever had against Releasees from
the beginning of time to the date of this Agreement. It is expressly understood
and agreed that the foregoing is a general release of all claims and rights
against C&D.
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5. RELEASE OF AGE DISCRIMINATION CLAIMS.
------------------------------------
After having had a reasonable opportunity to review this Agreement
and an opportunity to consult with an attorney or adviser of his choice, Xx.
Xxxxxx, his heirs, administrators, and assigns, knowingly and voluntarily
releases, remises and forever discharges C&D, its subsidiary and related
companies, and each of their respective officers, directors, employees, agents
and attorneys and all those charged or chargeable with liability on their
behalf, of and from any and all rights or claims which he may have against any
of them under the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. ss. 621 ET. SEQ. or under any other federal or state law prohibiting
discrimination based upon age, from the beginning of time to the date of this
Agreement.
6. COMPLIANCE WITH OLDER WORKERS BENEFIT PROTECTION ACT.
----------------------------------------------------
This Agreement is intended to comply with Section 201 of the Older
Workers Benefit Protection Act of 1990, 29 U.S.C.ss.626(f). Accordingly, Xx.
Xxxxxx acknowledges and represents as follows:
a. he waives all rights or claims against C&D under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C ss.621, ET SEQ.
("ADEA") knowingly and voluntarily in exchange for consideration of value to
which he is not otherwise entitled; b. he has been advised in writing by C&D to
consult with an attorney in connection with this Agreement and his decision to
waive his rights or claims under the ADEA;
c. he has been given a period of at least twenty-one (21) days within
which to consider this Agreement and his decision to waive his rights or claims
under the ADEA; and
d. he has been informed by C&D and understands that he may revoke
this Agreement for a period of seven (7) calendar days after signing it and that
this Agreement will not become effective or enforceable until after this seven
(7) day period has expired.
7. REVOCATION OF THIS AGREEMENT.
----------------------------
In the event that Xx. Xxxxxx chooses to revoke his acceptance of this
Agreement, he will provide C&D with written notice of the revocation, which
shall be sent by United States mail, certified, return receipt requested,
post-marked within seven (7) days of the date that he signs this Agreement.
Notice to C&D shall be given to Xxxxx X. Xxxxxx, General Counsel, 0000 Xxxxx
Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000.
8. COVENANT NOT TO XXX.
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Xx. Xxxxxx agrees and covenants that he has not and will not bring
any action in any forum, or file any claims against C&D or its subsidiary and
related companies, or any of their respective officers, directors, employees or
agents, past and present, individually or
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collectively, or any insurer of C&D which relates in any way to his employment,
his separation from employment by C&D or any matter which is associated either
directly or indirectly with his employment. C&D agrees and covenants that it has
not and will not bring any action in any forum, or file any claims against Xx.
Xxxxxx, which relate in any way to his employment, his separation from
employment from C&D or any other matter which is associated either directly or
indirectly with Xx. Xxxxxx'x employment, except, an action for fraud. C&D
acknowledges that as of the date of this Agreement it is not aware of any basis
for such a claim against Xx. Xxxxxx.
9. NONDISCLOSURE OF INFORMATION.
----------------------------
Xx. Xxxxxx acknowledges that he signed an "Agreement Relating to
Intellectual Property and Confidential Information" with C&D on July 7, 1998
("Confidentiality Agreement"). A copy is attached to this Agreement as Exhibit
"1." Xx. Xxxxxx reaffirms the obligations and duties he assumed under the
Confidentiality Agreement and agrees that he shall continue to abide by the
terms of the Confidentiality Agreement after the termination of his employment.
10. RETURN OF PROPERTY.
------------------
Xx. Xxxxxx represents that he has returned to C&D or will return
prior to the Effective Date all materials in his possession or within his
control which relate to the business of C&D, including, but not limited to,
data, documents, reports, programs, diskettes, computer printouts, program
listings, computer hardware and/or software, memoranda, notes, records, reports,
plans, studies, price lists, customer lists, customer contact and other
information, and any and all similar information without regard to the form in
which it is maintained. Xx. Xxxxxx acknowledges that all such materials are the
sole property of C&D and that he has no right, title, or other interest in or to
such materials. Xx. Xxxxxx further agrees to return all Company credit cards,
computers, printers, telephones and any similar or dissimilar items.
11. NON-SOLICITATION OF EMPLOYEES AND CUSTOMERS.
-------------------------------------------
a. Xx. Xxxxxx agrees that beginning on the date hereof and for a
period of one year after the Effective Date, he shall not, either directly or
indirectly, induce, suggest, encourage, entice, or solicit any employee of C&D
to leave the employ of C&D.
b. Xx. Xxxxxx agrees that beginning on the date hereof and for a
period of one year from the Effective Date, he will not, either directly or
indirectly or by acting in concert with others, solicit, influence, or attempt
to solicit or influence, any customers of C&D or any customer prospects of C&D
with whom Xx. Xxxxxx had any contact during the eighteen month period prior to
his separation from employment by C&D to purchase from any other person,
partnership, corporation or other entity any products which are the same,
similar to or marketed as competitive with products sold by C&D.
12. NON-COMPETITION.
---------------
a. Xx. Xxxxxx agrees that during such time as he shall be employed by
the Company, and for the applicable Restricted Period (as defined below)
thereafter, he shall not, without the written consent of the Board of Directors,
directly or indirectly, become associated
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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 that, at the time his employment with the Company ceases, is
competitive with the business in which the Company is engaged or in which the
Company has taken affirmative steps to engage (a "Competitive Business") in the
United States; provided, however, that nothing herein (i) shall prevent Xx.
Xxxxxx from investing without limit in the securities of any company listed on a
national securities exchange, provided that his involvement with any such
company is solely that of a stockholder, and (ii) is intended to prevent him
from being employed during the applicable Restricted Period by any business
other than a Competitive Business. The applicable Restricted Period shall be the
one-year period following the Effective Date.
b. The parties hereto intend that the covenant contained in this
Paragraph 12 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 Paragraph 12, 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
Paragraph 12.
13. ENFORCEMENT.
-----------
Xx. Xxxxxx acknowledges that he has received sufficient consideration
for the covenants and restrictions contained in this Agreement including,
without limitation, those set forth in Paragraphs 8, 9, 11 and 12 of this
Agreement; that such restrictions are reasonable in time and scope, and are
necessary for the reasonable protection of the business of C&D. Xx. Xxxxxx also
acknowledges that monetary damages would be an inadequate remedy for a breach by
Xx. Xxxxxx of the promises contained in Paragraphs 8, 9, 11, and 12 of this
Agreement and, if found by a court of competent jurisdiction to have breached
any of these restrictions, consents to the entry of an order granting injunctive
relief to prevent further violations of those restrictions by Xx. Xxxxxx. Xx.
Xxxxxx agrees that the time period of the obligations set forth in Paragraphs 8,
9, 11 and 12 of this Agreement shall be extended by any amount of time during
which he is in violation of the obligations set forth therein. Xx. Xxxxxx also
agrees that any award of injunctive relief shall be in addition to, and in no
way shall serve as, a limitation on any and all other remedies C&D may have for
enforcement of the obligations set forth in Paragraphs 8, 9, 11, and 12 of this
Agreement.
14. COOPERATION WITH C&D/ACKNOWLEDGEMENT OF PAYMENT.
-----------------------------------------------
Xx. Xxxxxx will fully cooperate with and assist C&D or any other
company affiliated with C&D in connection with its defense or prosecution of any
civil action or other legal proceeding or other business matter involving C&D,
of which C&D believes Xx. Xxxxxx has knowledge or information. This cooperation
shall include, but it is not limited to, being reasonably available to
participate in depositions, providing accurate and truthful information about
C&D, complying with requests by C&D to meet with its attorneys for the purpose
of providing information to them, and providing any other form of reasonable
assistance requested. Xx. Xxxxxx acknowledges that all monies that he has earned
in connection with his employment with C&D through the transition date have been
paid.
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15. TERMS CONFIDENTIAL.
------------------
Xx. Xxxxxx agrees to keep confidential and not disclose the financial
terms of this Agreement except to his immediate family (who agree to comply with
this obligation of confidentiality) and tax and legal advisers.
16. REEMPLOYMENT OR REINSTATEMENT.
-------------------------------
Xx. Xxxxxx shall not seek employment with C&D and hereby forever
releases and discharges C&D from any and all liability to reinstate or reemploy
him in any capacity and any and all claims of a right to reinstatement.
17. BREACH.
------
Xx. Xxxxxx and C&D agree that in the event one party breaches any
part or parts of this Agreement, legal proceedings may be instituted against
that party for breach of contract. In the event that a party institutes legal
proceedings for breach of this Agreement, it is agreed that the sole remedy
available to said party shall be enforcement of the terms of this Agreement
and/or a claim for damages resulting from a breach of this Agreement, but that
under no circumstances shall the party be entitled to revive, reassert or assert
any claims that the party has released or abandoned under this Agreement in
accordance with the provisions of paragraphs 4, 5, 6 and 8.
18. NATURE OF AGREEMENT.
-------------------
It is understood and agreed by Xx. Xxxxxx and C&D that this Agreement
is a settlement of claims, if any, that may exist between them; that this
settlement does not constitute an admission of liability or wrongdoing on the
part of either party; and that by entering into this settlement neither party
admits that there has been any unlawful or wrongful act committed against the
other which makes it liable in any manner, but that this settlement is only a
compromise.
19. ENTIRE AGREEMENT.
----------------
Except as specifically set forth in Paragraph 9 of this Agreement,
this Agreement replaces and supercedes all prior agreements between the parties
and constitutes the entire agreement between the parties. No modification to
this Agreement shall be effective unless it is in writing and signed by an
officer of C&D and Xx. Xxxxxx.
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20. CHOICE OF LAW AND SELECTION OF FORUM.
------------------------------------
This Agreement shall be interpreted, enforced, and governed under the
laws of the Commonwealth of Pennsylvania. If any provision of this Agreement, or
the application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
21. AGREEMENT ENTERED KNOWINGLY AND VOLUNTARILY.
-------------------------------------------
Xx. Xxxxxx acknowledges that he has been given a reasonable
opportunity to discuss this Agreement with an attorney or advisor of his choice;
that he has carefully read and fully understands all of the provisions of this
Agreement; and that he is entering into this Agreement knowingly, voluntarily
and of his own free will.
22. MISCELLANEOUS.
-------------
a. Except as expressly set forth in this Agreement, this Agreement
contains the final and entire agreement of the parties and is intended to be an
integration of all prior agreements, negotiations and understandings. Neither
C&D nor Xx. Xxxxxx shall be bound by any covenants, agreements, statements,
representations or warranties, oral or written, not contained in this Agreement
or any attachment or exhibit hereto. No change or modification to this Agreement
shall be valid unless the same is in writing and signed by the parties. No
waiver of any of the provisions of this Agreement shall be valid unless the same
is in writing and is signed by the party against whom it is sought to be
enforced.
b. This Agreement shall inure to the benefit of the respective
parties hereto and their respective heirs, administrators, successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on
the dates indicated next to their respective signature.
03/01/2002 /s/ Xxxx X. Xxxxxx
---------------- ----------------------------
Date Xxxx X. Xxxxxx
C&D TECHNOLOGIES, INC.
03/01/02 By: /s/ Xxxx Xxxxxxx
----------------- ---------------------------
Date Title: President/CEO
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EXHIBIT A
RELEASE
This Release is made this _____ day of _______________, 2003 by and
between C&D Technologies, Inc. ("Employer") and Xxxx X. Xxxxxx ("Employee").
RECITALS:
WHEREAS, Employer and Employee are parties to an Agreement and Release
dated as of__________________________, 2002 ("Agreement and Release") the terms
of which specifically contemplate the execution of this Release; and
NOW THEREFORE, the parties hereto, intending to be legally bound, in
consideration of the mutual promises and undertakings set forth herein, do
hereby agree as follows: .
1. GENERAL RELEASE.
---------------
For and in consideration of the monies and benefits paid to Employee
by Employer, as more fully described in the Agreement and Release dated ______,
2002, and for other good and valuable consideration, Employee knowingly and
voluntarily releases, remises and forever discharges Employer, its subsidiary
and related companies and their predecessors, successors and assigns, and each
of their respective officers, directors, employees, agents and attorneys and all
those charged or chargeable with liability on their behalf (collectively
"Releasees"), from any and all rights or claims, of any nature whatsoever
whether known or unknown which he has or may have against Releasees, including,
but not limited to those rights or claims arising out of or in any way connected
with his employment by C&D or his separation from employment by C&D, claims for
wages, stock or profits, claims of wrongful discharge in violation of public
policy or on any other grounds, breach of contract (whether express or implied),
breach of the covenant of good faith and fair dealing, intentional or negligent
infliction of emotional distress, defamation, negligence, misrepresentation,
fraud, violation of public policy, other torts (whether based on statute or
common law), claims for payment of attorneys' fees (whether based on contract,
statute or common law), claims of discrimination on the basis of race, gender,
color, religion, marital status, national origin, handicap or disability, or
veteran's status, and any and all claims arising out of or relating to any
federal, Pennsylvania, other state or local statutes, ordinances, regulations,
orders or common law, labor relations, fair employment and equal employment
opportunity laws, Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. ss. 2000e-1, ET SEQ., 42 U.S.C. ss. 1981-1988, the Americans With
Disabilities Act, 42 U.S.C. ss. 12101, ET SEQ., the Family and Medical Leave Act
of 1993, the Employee Retirement Income Security Act of 1974, the Consolidated
Omnibus Budget Reconciliation Act of 1985, the National Labor Relations Act, the
Fair Labor Standards Act, the Occupational Safety and Health Act and the
Pennsylvania Human Relations Act, 43 P.S. ss. 951 ET SEQ. that he now has or
ever had against Releasees from the beginning of time to the date of this
Agreement. It is expressly
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understood and agreed that the foregoing is a general release of all claims and
rights against C&D.
2. RELEASE OF AGE DISCRIMINATION CLAIMS.
------------------------------------
After having had a reasonable opportunity to review this Agreement
and an opportunity to consult with an attorney or adviser of his choice,
Employee, his heirs, administrators, and assigns, knowingly and voluntarily
releases, remises and forever discharges C&D, its subsidiary and related
companies, and each of their respective officers, directors, employees, agents
and attorneys and all those charged or chargeable with liability on their
behalf, of and from any and all rights or claims which he may have against any
of them under the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. ss. 621 ET. SEQ. or under any other federal or state law prohibiting
discrimination based upon age, from the beginning of time to the date of this
Agreement.
3. COMPLIANCE WITH OLDER WORKERS BENEFIT PROTECTION ACT.
----------------------------------------------------
This Agreement is intended to comply with Section 201 of the Older
Workers Benefit Protection Act of 1990, 29 U.S.C. ss.626(f). Accordingly,
Employee acknowledges and represents as follows:
a. he waives all rights or claims against C&D under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.Css.621, ET SEQ.
("ADEA") knowingly and voluntarily in exchange for consideration of value to
which he is not otherwise entitled;
b. he has been advised in writing by C&D to consult with an attorney
in connection with this Agreement and his decision to waive his rights or claims
under the ADEA;
c. he has been given a period of at least twenty-one (21) days within
which to consider this Agreement and his decision to waive his rights or claims
under the ADEA; and
d. he has been informed by C&D and understands that he may revoke
this Agreement for a period of seven (7) calendar days after signing it and that
this Agreement will not become effective or enforceable until after this seven
(7) day period has expired.
4. REVOCATION OF THIS RELEASE.
--------------------------
In the event that Employee chooses to revoke his acceptance of this
Release, he will provide C&D with written notice of the revocation, which shall
be sent by United States mail, certified, return receipt requested, post-marked
within seven (7) days of the date that he signs this Agreement. Notice to C&D
shall be given to Xxxxx X. Xxxxxx, General Counsel, 0000 Xxxxx Xxxxxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxxxx 00000.
5. COVENANT NOT TO XXX.
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Employee agrees and covenants that he has not and will not bring any
action in any forum, or file any claims against C&D or its subsidiary and
related companies, or any of their respective officers, directors, employees or
agents, past and present, individually or collectively, or any insurer of C&D
which relates in any way to his employment, his separation from employment by
C&D or any matter which is associated either directly or indirectly with his
employment.
6. MISCELLANEOUS.
--------------
a. Employee agrees that the payments made and other consideration
received pursuant to this Release are not to be construed as an admission of
legal liability by Releasees or any of them and that no person or entity shall
utilize this Release or the consideration received pursuant to this Release as
evidence of any admission of liability since Releasees expressly deny liability.
b. Employee affirms that the only consideration for the signing of
this Release are the terms stated herein and in the Agreement and Release and
that no other promise or agreement of any kind has been made to Employee by any
person or entity whatsoever to cause Employee to sign this Release.
c. Employee and Employer affirm that the Agreement and Release (and
the document specifically incorporated therein) and this Release set forth the
entire agreement between the parties with respect to the subject matter
contained herein and supersede all prior or contemporaneous agreements or
understandings between the parties with respect to the subject matter contained
herein. Further, there are no representations, arrangements or understandings,
either oral or written, between the parties, which are not fully expressed
herein. Finally, no alteration or other modification of this Release shall be
effective unless made in writing and signed by both parties.
d. Employee certifies that Employee has returned to Employer all
keys, identification cards, credit cards, computer and telephone equipment and
other property or information of Employer in Employee's possession, custody, or
control including, but not limited to, any information contained in any computer
files maintained by Employee during Employee's employment with Employer.
Employee certifies that Employee has not kept the originals or copies of any
documents, files, or other property of Employer which Employee obtained or
received during Employee's employment with Employer.
e. EMPLOYEE ACKNOWLEDGES THAT EMPLOYER ADVISED EMPLOYEE TO CONSULT
WITH AN ATTORNEY PRIOR TO EXECUTING THIS RELEASE.
f. Employee affirms that Employee has carefully read this Release,
that Employee fully understands the meaning and intent of this document, that
Employee has signed this Release voluntarily and knowingly, and that Employee
intends to be bound by the promises contained in this Release for the
consideration described in the Agreement and Release.
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IN WITNESS WHEREOF, Employee and the authorized representative of Employer
have executed this Release on the dates indicated below:
Dated:_____________________ ------------------------------
Xxxx X. Xxxxxx
C&D TECHNOLOGIES, INC.
Dated:_____________________ By:___________________________
Title:
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ENDORSEMENT
I, Xxxx X. Xxxxxx, hereby acknowledge that I was given 21 days to consider
the foregoing Agreement and Release and voluntarily chose to sign the Agreement
and Release prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the Commonwealth of
Pennsylvania that the foregoing is true and correct.
EXECUTED this ________ day of ______________, 2002, at
_______________________________________, Pennsylvania.
------------------------------
Xxxx X. Xxxxxx
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