Exhibit 10.2
EMPLOYEE SEPARATION AGREEMENT
This is an Employee Separation Agreement ("Agreement") between Xxxx
Xxxxxxxx (referred to herein as "Xx. Xxxxxxxx" or "Employee") and C&D
Technologies, Inc. (referred to herein as "C&D" or "Company") setting forth the
terms of separation from employment of Employee.
WITNESSETH
WHEREAS, Employee is the Vice President, General Manager of the Motive
Power Division for C&D, based in Blue Xxxx, Pennsylvania; and
WHEREAS, the parties have mutually agreed to terminate the employment
relationship on the terms set forth herein;
WHEREAS, C&D has agreed to grant Employee certain consideration, set
forth herein, which Employee acknowledges that C&D is not required to grant; and
NOW, THEREFORE, Employee 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 Termination of Employment.
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a. Employee's employment by C&D will terminate on the earlier of
(i) the date that Xx. Xxxxxxxx commences full time employment with any third
party; or (ii) 364 days following the Transition Date, as defined in Section
1(b) below (the "Effective Date"). C&D's records will reflect that this
termination is a result of a voluntary resignation.
b. Beginning July 1, 2002 or such later date as the parties may
agree, but in any event no later than September 1, 2002 (the "Transition Date")
and until the Effective Date, Xx. Xxxxxxxx'x job title shall be Vice President,
Special Projects; however, effective upon the Transition Date, employee shall
not be required to regularly attend work, but shall occasionally perform such
assignments, if any, as may be communicated to him in writing, by either of the
President and Chief Executive Officer or the Board of Directors of C&D.
2. Additional Consideration.
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Provided that Xx. Xxxxxxxx accepts all of the terms and
conditions of this Agreement and does not revoke his acceptance as provided in
Section 8, below, C&D shall provide salary continuation, paid bi-weekly, through
the Effective Date, at the rate of one-half of Xx. Xxxxxxxx'x then-current
annual base salary (less applicable federal, state, and local payroll and other
taxes as well as deductions for outstanding loan payments under that certain
Promissory Note dated January 11, 2002, which is incorporated herein by
reference), in addition to certain other consideration described below, all of
which shall collectively be referred to as the "Additional Consideration".
Employee acknowledges C&D is not obligated to grant the Additional
Consideration. Employee's current base salary, stated in annual terms, shall be
deemed to be
$150,000 for any period of time during which Motive Power employees are subject
to a salary reduction action and $160,000, stated in annual terms, for any
periods thereafter during which he is entitled to be paid salary continuation
pursuant to the terms of this Agreement.
3. Fringe Benefits.
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a. Through the Effective Date, Xx. Xxxxxxxx may continue to
participate in the Company's medical, dental and life insurance programs as Xx.
Xxxxxxxx participated on May 24, 2002, the costs for which shall be those
applicable to employees earning $100,000 or greater per year. Thereafter, Xx.
Xxxxxxxx may continue, at his expense, his medical and dental insurance benefits
to the extent permitted by the Consolidated Omnibus Budget Reconciliation Act
("COBRA"). If Xx. Xxxxxxxx should make application for and be determined to be
eligible to receive short-term disability payments, qualifying payments would be
made by the Company in accordance with the terms of the Plan, and at the
bi-weekly rate specified in Section 2 of this Agreement (i.e., no double
payments). Provided that Xx. Xxxxxxxx does not notify C&D in writing to cancel
and cease taking payroll deductions for his long-term disability insurance
coverage before such date, Xx. Xxxxxxxx may participate in the company-sponsored
long-term disability plan through the Effective Date in accordance with its
terms. If requested to do so, C&D will report truthfully to the carrier that Xx.
Xxxxxxxx'x annualized base salary during his employment with C&D was $160,000.
b. Employee's earned but unused vacation time, if any, shall be
subsumed within the time between the Transition Date and the Effective Date and
shall not be separately paid for. No additional vacation time shall accrue
through the Effective Date.
c. Through the Effective Date, Xx. Xxxxxxxx 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. Xx. Xxxxxxxx may also continue to participate in the
Deferred Compensation Plan and Supplemental Executive Retirement Plan in
accordance with the terms of the respective Plans through the Effective Date.
d. Xx. Xxxxxxxx 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 a voluntary resignation on the Effective Date. Through the Effective
Date, Xx. Xxxxxxxx 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. Xxxxxxxx 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
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must be pre-cleared with either of the Vice President, Finance or Vice
President, General Counsel of C&D. From the Transition Date through the
Effective Date, Employee will not be subject to the Company's Executive Stock
Ownership guidelines.
e. Xx. Xxxxxxxx will not be eligible to participate in, and
acknowledges that he is not entitled to receive any payments or other awards
under any Management Incentive Compensation Plan ("MICP") or any other bonus
arrangement with C&D; provided, however, (i) that in its sole discretion, the
President, Chief Executive Officer and/or the Compensation Committee of the
Board of Directors may consider whether any discretionary bonus will be paid;
and (ii) C&D agrees to pay Xx. Xxxxxxxx the sum of $12,500, net of standard
deductions ("Agreed Bonus") within ten (10) business days following the
execution of the Release referred to in Section 4 hereof. Notwithstanding the
preceding sentence, in the event that MICP bonuses are paid to C&D senior
management, generally, prior to the Effective Date, Xx. Xxxxxxxx shall be
entitled to receive one-half of the Agreed Bonus, net of standard deductions,
upon execution of an interim Release (in a form satisfactory to C&D) covering
the period from the Transition Date through the date on which the Agreed Bonus
is paid. Xx. Xxxxxxxx will not be eligible to receive any further stock option
grants or salary increases through the Effective Date, nor, except as otherwise
noted in Section 2 hereof, will Xx. Xxxxxxxx be subject to salary reductions or
unpaid time off for furloughs that may apply to the Motive Power Division or C&D
employees, generally. Xx. Xxxxxxxx shall not be eligible for a Company-paid
executive physical examination prior to the Effective Date.
f. Xx. Xxxxxxxx shall not be eligible to continue to receive
reimbursement for executive financial planning following the Transition Date.
Xx. Xxxxxxxx shall be eligible for reimbursement for financial planning
assistance for fees reasonably incurred before the Transition Date.
g. Except for accrued benefits under C&D employee benefit plans
in which Employee may currently participate, all other employee benefits not
specifically continued by this Agreement shall terminate on the Effective Date.
h. Xx. Xxxxxxxx acknowledges that the Company may, from time to
time, in its sole discretion, modify or amend any or all of the plans in which
he may participate to apply to C&D employees generally (including Xx. Xxxxxxxx).
4. Execution of a Release by Xx. Xxxxxxxx.
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In consideration of the Additional Consideration described in
Xxxxxxxx 0, (x) xxx (x), 0, 0 (x), (x), (x) and (e) hereof, which Xx. Xxxxxxxx
acknowledges that C&D is not required or obligated to pay or otherwise provide
for, Xx. Xxxxxxxx agrees to executive the release which is attached hereto as
Exhibit A within five (5) days following the Effective Date.
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5. General Release.
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After having had a reasonable opportunity to review this
Agreement and an opportunity to consult with an advisor or an attorney of
Employee's choice, Employee on Employee's own behalf, and on behalf of
Employee's heirs, administrators and assigns, knowingly and voluntarily
releases, remises and forever discharges C&D, its subsidiaries, parent and
related companies and their predecessors, successors and assigns, and each of
their respective officers, directors, employees, stockholders, insurers agents
and attorneys and all those charged or chargeable with liability on their behalf
(collectively "Releasees"), from any and all rights or claims, causes of action,
liability, damages, attorneys' fees and costs of any kind or nature which
Employee has or may have against Releasees, including, but not limited to those
rights or claims arising out of or in any way connected with Employee's
employment by C&D or Employee's 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, Connecticut, other state or local statutes, ordinances,
regulations, orders or common law, labor relations, fair employment and equal
employment 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. 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, the Pennsylvania Wage and Hour laws, the Pennsylvania Wage Payment and
Collection Law (PWPCL), the Pennsylvania Human Relations Act (PHRA) that
Employee 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.
6. Release of Age Discrimination Claims.
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After having had a reasonable opportunity to review this
Agreement and an opportunity to consult with an attorney or adviser of
Employee's choice, Employee, Employee's 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 and agents and all those charged or chargeable with
liability on their behalf, of and from any and all rights or claims which
Employee 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.
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7. Compliance with Older Workers Benefit Protection Act.
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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 that Employee:
a. 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 Employee is not otherwise entitled;
b. has been advised in writing by C&D to consult with an attorney
in connection with this Agreement and Employee's decision to waive Employee's
rights or claims under the ADEA;
c. has been given a period of at least twenty-one (21) days
within which to consider this Agreement and Employee's decision to waive
Employee's rights or claims under the ADEA; and
d. has been informed by C&D and understands that Employee 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.
8. Revocation of this Agreement.
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In the event that Employee chooses to revoke Employee's
acceptance of this Agreement, Employee 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) calendar days of the date that
Employee signs this Agreement. Notice to C&D shall be given to the Vice
President, Human Resources, C&D Technologies, 0000 Xxxxx Xxxxxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxxxx 00000.
9. Covenant Not To Xxx.
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Employee agrees and covenants that Employee has not and will not
bring any action, or file any claims against C&D and its subsidiary and related
companies, or any of their respective officers, directors, employees or agents,
past and present, individually or collectively, which relates in any way to
Employee's employment or Employee's separation from employment by C&D.
10. Non-Disparagement.
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Employee 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 Employee's case, concerning
C&D's officers, directors, employees, agents, products or services, either
verbally, in
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writing, or in any other manner, to any third party for any purpose whatsoever,
unless a legal duty to do so is imposed.
11. Nondisclosure of Information.
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a. Employee acknowledges that by reason of his employment with
C&D, Employee came into possession of confidential information regarding the
business and operations of C&D, including, without limitation, trade secrets,
proprietary information, internal financial information, financial, marketing
and strategic plans, product costs, customer lists, pricing, and key contact
information, dealer and supplier data, inventions, new product plans, pending
patent applications, formulas, proprietary compounds, product styles,
manufacturing processes, manufacturing equipment, present or anticipated methods
of doing business, key personnel information, organizational charts, and
database information, whether or not marked "confidential" ("Confidential
Business Information"), and that unauthorized use or disclosure of Confidential
Business Information would irreparably damage C&D. Employee agrees that he will
forever keep confidential all Confidential Business Information of which
Employee learned or came into possession while an employee of C&D, and Employee
will not disclose or use C&D's Confidential Business Information.
b. Employee acknowledges that Employee signed an "Agreement
Relating to Intellectual Property and Confidential Information" with C&D on
December 28, 2000 ("Confidentiality Agreement"). Employee acknowledges and
reaffirms the obligations and duties Employee assumed under the Confidentiality
Agreement and agrees that Employee shall continue to abide by the terms of the
Confidentiality Agreement after the termination of Employee's employment.
12. Return of Property.
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Xx. Xxxxxxxx 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 or dissimilar information without regard to
the form in which it is maintained. Xx. Xxxxxxxx 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. Xxxxxxxx further agrees to return all
Company credit cards, computers, printers, cellular telephones and any similar
or dissimilar items prior to the Effective Date and that he will use them
exclusively for the conduct of C&D business.
13. Non-Solicitation of Employees and Customers.
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a. Xx. Xxxxxxxx agrees that beginning on the date hereof and for
a period of one-hundred eighty (180) days 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.
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b. Xx. Xxxxxxxx agrees that beginning on the Transition Date and
for a period of one-hundred eighty (180) days after the Effective Date, he shall
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. Xxxxxxxx had any contact during the
eighteen month period prior to the Transition Date 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.
14. Non-Competition.
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a. Xx. Xxxxxxxx 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 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,
as of the Effective Date, 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. Xxxxxxxx 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 hundred eighty (180) day period
following the Effective Date.
The parties hereto intend that the covenant contained in this
Section 14 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 14, 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 14.
15. Enforcement.
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Xx. Xxxxxxxx acknowledges that he has received sufficient
consideration for the covenants and restrictions contained in this Agreement
including, without limitation, those set forth in Sections 9, 11, 13 and 14 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. Xxxxxxxx
also acknowledges that monetary damages would be an inadequate remedy for a
breach by Xx. Xxxxxxxx of the promises contained in Sections 9, 11, 13 and 14 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.
Xxxxxxxx. Xx. Xxxxxxxx agrees that the time period of the obligations set forth
in Sections 9, 11, 13 and 14 of this Agreement shall be extended
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by any amount of time during which he is in violation of the obligations set
forth therein. Xx. Xxxxxxxx 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
Sections 9, 11, 13 and 14 of this Agreement.
16. Cooperation with C&D/Acknowledgement of Payment.
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a. Xx. Xxxxxxxx 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. Xxxxxxxx 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. C&D shall reimburse Xx. Xxxxxxxx for any out-of-pocket
expenses incurred in connection therewith
b. Xx. Xxxxxxxx acknowledges that all monies that he has earned
in connection with his employment with C&D have been paid.
17. Reemployment or Reinstatement.
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Xx. Xxxxxxxx acknowledges that he has been advised that he should
have no expectation whatever of future 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.
18. Breach.
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Xx. Xxxxxxxx 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 Sections 5, 6, 7 and 9.
19. Nature of Agreement.
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It is understood and agreed by Xx. Xxxxxxxx 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.
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20. Choice of Law and Selection of Forum.
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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.
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Xx. Xxxxxxxx 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.
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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. Xxxxxxxx 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.
/s/ Xxxx Xxxxxxxx 6/21/02
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Xxxx Xxxxxxxx Date
C&D TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx 6/21/02
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Title: Vice President Date
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