Exhibit 10.1
June 21, 2005
Xx. Xxxxxxx X. Xxxxxx
[Home address inserted]
Dear Xx. Xxxxxx:
C&D Technologies, Inc., a Delaware corporation (the "Company"), wishes
to employ you in an executive capacity and the Company desires to encourage such
employment by providing certain protections for you by entering into this
Agreement with you, in return for which you agree to be employed by the Company
on the terms set forth herein, to refrain from certain competitive activity and
to provide the Company with certain assurances upon your departure. In
consideration of same, the Company agrees to employ you, and you agree to accept
such employment, under the following terms and conditions:
1. Term of Employment. Your employment under this Agreement shall
continue in effect until either party shall give to the other party at least 30
days' prior written notice (or such other notice period as may be specifically
provided for in this Agreement) of the termination of this Agreement (a
"Termination Notice"), or until it is terminated in accordance with Section 8.
If a Termination Notice is given by either party 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. The period during which
you are employed under this Agreement is hereafter referred to as the "Term."
2. Compensation and Benefits.
(a) During the Term, you shall receive a salary for performance of
your obligations under this Agreement at an initial rate of $500,000 per year,
payable in such manner as is consistent with the Company's payroll practices for
executives and subject to increase (but not decrease unless such decrease is
applied at the same time to all executive officers of the Company and does not
exceed 10% of such Base Salary) by the Board of Directors in its sole
discretion. Such salary, as it may be adjusted from time to time, is hereinafter
referred to as the "Base Salary."
(b) During the Term, you shall have the benefit of and be entitled to
participate in such employee benefit plans and programs, including life,
disability and medical insurance, savings, retirement and other similar plans,
as the Company now has or hereafter may establish from time to time, and in
which you are entitled to participate pursuant to the terms thereof. 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.
(c) During the Term, you shall be entitled (i) to participate in the
Company's Management Incentive Compensation Plan or any successor thereto each
year in accordance with criteria and for amounts approved by the Board of
Directors, except as may otherwise be delegated to the Compensation Committee or
other relevant committee, and (ii) to be granted options to acquire stock of the
Company or other equity awards, to the extent (if any) approved by the
Compensation Committee or the relevant committee, under the Company's stock
option or equity incentive plans in effect from time to time (all such options
and equity awards, "Awards"). Without limiting the foregoing, you shall have a
targeted bonus for each fiscal year of 55% of your Base Salary (with the actual
payment of any bonus being dependent on your achievement of targeted objectives
except as otherwise set forth in this Agreement). Each of the actual annual
bonuses paid to you each year is hereinafter referred to as an "Annual Bonus."
(d) You shall be entitled to payments and benefits in connection with
a Change of Control Termination (as defined in Exhibit A hereto) and to certain
additional payments if you are subjected to the federal excise tax on excess
parachute payments, as more fully set forth in Exhibit A.
(e) You shall be entitled to four weeks of vacation each calendar
year during the Term.
(f) During the Term, the Company shall provide you with an automobile
allowance of $1,100 per month that you may use for your automobile expenses. You
will be taxed on this allowance and such allowance will be subject to applicable
tax withholdings.
3. Duties.
(a) During the Term, you shall serve and the Company shall employ you
as the President and Chief Executive Officer of the Company, with such executive
duties and responsibilities consistent with such positions and stature as the
Board of Directors from time to time may determine. You shall report to, and act
under the general direction of, the Board of Directors. You shall use your best
efforts to carry out the instructions of the Board of Directors. You shall be
nominated, on an annual basis as long as you continue to be employed under this
Agreement, for election by the stockholders as a director of the Company and, if
elected, you shall serve as a director, without additional compensation. In
addition, you shall serve as an officer and/or director of any of the Company's
subsidiaries, in all cases in conformity with the organizational documents and
the policies of the Board of Directors of each such subsidiary, without
additional compensation. You will review and agree to comply with the Company's
then-current Code of Business Conduct to the same extent required for other
United States-based employees of the Company. You will perform all of your
responsibilities in compliance with all applicable laws. You acknowledge that in
your capacity as principal executive officer of the Company, you will be
expected to execute certain documents on behalf of the Company under the federal
securities laws, which may include documents covering periods prior to the date
of this Agreement. As of the date of this Agreement, you have no reason to
believe that you would not be prepared to execute all documents required for
signature by the Company's principal executive officer (e.g., the Company's
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Quarterly Report on Form 10-Q for the second fiscal quarter ended July 31,
2005), assuming that the Company's principal financial officer and certifying
financial and other employees of the Company were also prepared to execute or
certify such documents as the case may be.
(b) During the Term, you shall devote your entire business time and
energies during normal business hours to the business and affairs of the Company
and its subsidiaries. Nothing in this Section 3 shall be construed as
prohibiting you from investing your personal assets in businesses in which your
participation is solely that of a passive investor in such form or manner as
will not violate Section 5 hereof or require any services on your part in the
operation or affairs of those businesses. You may also participate in
philanthropic or civic activities as long as they do not materially interfere
with your performance of your duties hereunder. Service on any board of
directors other than those of the Company and its subsidiaries must be approved,
in advance, by the Board of Directors of the Company.
(c) During the Term, you shall be subject to the Company's rules,
practices and policies applicable to the Company's senior executive employees.
4. Expenses. The Company shall reimburse you for all reasonable
expenses incurred by you during the Term in connection with your employment upon
presentation of appropriate documentation therefor in accordance with the
Company's expense reimbursement practices. In the event during the Term the
Company's principal executive offices are relocated to a location that increases
your commute to work by more than 35 miles, the Company shall reimburse your
moving expenses (including reasonable costs relating to interim living
accommodations).
5. Restrictive Covenants.
(a) During the Term, and for the applicable Restricted Period (as
defined below) 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 or agent of, or as a
consultant for, any business anywhere in the world that 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") as of the time your
employment with the Company ceases; provided, however, that (i) nothing herein
shall prevent you from investing in up to 5% of the securities of any company
listed on a national securities exchange or quoted on the NASDAQ quotation
system, as long as your involvement with any such company is solely that of a
stockholder, and (ii) nothing herein is intended to prevent you from being
employed by, or otherwise rendering services to, any business other than a
Competitive Business following the termination of your employment with the
Company. The Restricted Period shall be the two-year period following the date
your employment terminates. You acknowledge that the provisions of this Section
5 are reasonable in light of the Company's worldwide business operations and the
position in which you will serve at the Company and that the provisions will not
prevent you from obtaining employment after the termination of this Agreement.
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(b) The parties hereto intend that the covenant contained in this
Section 5 shall be deemed a series of separate covenants for each appropriate
jurisdiction. If, in any judicial proceeding, a court shall refuse to enforce
all of the separate covenants deemed included in this Section 5 on grounds that,
taken together, they cover too extensive a geographic area, the parties intend
that those covenants (taken in order of the least populous jurisdictions) which,
if eliminated, would permit the remaining separate covenants to be enforced in
that proceeding, shall, for the purpose of such proceeding, be deemed eliminated
from the provisions of this Section 5.
6. Confidentiality, Noninterference and Proprietary Information.
(a) In the course of your employment by the Company hereunder you
will have access to Confidential or Proprietary Data or Information of the
Company. You shall 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 of the Company or for the benefit of any
other person, any of such Confidential or Proprietary Data or Information,
except to the extent the same (i) becomes publicly unknown other than through a
breach of this Agreement by you, (ii) was known to you prior to the disclosure
thereof by the Company to you from a source that was entitled to disclose it, or
(iii) is subsequently disclosed to you by a third party who shall not have
received it under any obligation of confidentiality to the Company. For purposes
of this Agreement, the term "Confidential or Proprietary Data or Information"
shall mean data or information not generally available to the public, including
personnel information, financial information, customer lists, supplier lists,
product and tooling specifications, trade secrets, information concerning
product composition and formulas, tools and dies, drawings and schematics,
manufacturing processes, information regarding operations, systems and services,
know-how, computer and any other electronic, processed or collated data,
computer programs, and pricing, marketing, sales and advertising data.
(b) You shall not, during the Term and for the applicable Restricted
Period after the termination of your employment with the Company, for your own
account or for the account of any other person, (i) solicit or divert to any
Competitive Business any individual or entity who is then a customer of the
Company or any subsidiary or affiliate of the Company or who was a customer of
the Company or any subsidiary or affiliate during the preceding twelve-month
period, (ii) employ, retain as a consultant, attempt to employ or retain as a
consultant, or solicit or assist any Competitive Business in employing or
retaining as a consultant any individual who is then an employee of the Company
or any subsidiary or affiliate or who was employed by the Company or any
subsidiary or affiliate during the preceding twelve-month period, or (iii)
otherwise interfere in any material respect with the Company's relationship with
any of its suppliers, customers, employees or consultants; provided, however,
that you shall not be prohibited from contacting suppliers or customers after
termination of your employment with regard to matters that do not violate your
non-competition or confidentiality obligations contained in Sections 5(a) and
6(a) or interfere in any material respect with the Company's relationship with
such parties.
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(c) You shall at all times promptly disclose to the Company, in such
form and manner as the Company reasonably may require, any inventions,
improvements or procedural or methodological innovations, programs, methods,
forms, systems, services, designs, marketing ideas, products or processes
(whether or not capable of being trademarked, copyrighted or patented) conceived
or developed or created by you during and in connection with your employment
hereunder and which relate to the business of the Company ("Intellectual
Property"). All such Intellectual Property shall be the sole property of the
Company. You shall execute such instruments and perform such acts as reasonably
may be requested by the Company to transfer to and perfect in the Company all
legally protectable rights in such Intellectual Property. If the Company is
unable for any reason to secure your signature on such instruments, you hereby
irrevocably appoint the Company and its officers and agents as your agents and
attorneys-in-fact to execute such instruments and to do such things with the
same legal force and effect as if executed or done by you.
(d) All written, electronic and other tangible 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 the request of the Company during your
employment, you shall deliver the same to the Company. In addition, upon
termination of your employment, or upon request of the Company during your
employment, you shall deliver to the Company all other Company property in your
possession or under your control, including Confidential or Proprietary Data or
Information and all Company credit cards and computer and telephone equipment.
7. Equitable Relief. With respect to the covenants contained in
Sections 5 and 6 of this Agreement, you acknowledge that any remedy at law for
any breach of said covenants may be inadequate and that the Company, in addition
to its rights at law, shall be entitled to specific performance or any other
mode of injunctive or other equitable relief to enforce its rights hereunder.
8. Termination of Term. The Term shall terminate upon the following
terms and conditions:
(a) The Term shall automatically terminate upon your death.
(b) The Term may be terminated by the Company upon your Disability.
For purposes of this Agreement, "Disability" shall mean your inability, due to
reasons of physical or mental health, to discharge properly a substantial
portion of your duties hereunder for any 180 days (whether or not consecutive)
during any period of 365 consecutive days, as determined in the opinion of a
physician reasonably satisfactory to both you and the Company. If the parties do
not agree on a mutually satisfactory physician within ten days after 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. The services of the physician shall be paid for by the Company.
You shall fully cooperate with the examining physician, including submitting
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yourself to such examinations as may be requested by the physician for the
purpose of determining whether you are disabled.
(c) The Term shall terminate immediately if the Company terminates
your employment for Cause. For purposes of this Agreement, "Cause" shall exist
upon a finding by the Board of Directors of any of the following: (i) an act or
acts of willful material misrepresentation, fraud or dishonesty by you that
results in the personal enrichment of you or another person or entity at the
expense of the Company; (ii) your admission, confession or conviction of any
felony or any other crime or offense involving misuse or misappropriation of
money or other property; (iii) any act involving gross moral turpitude by you
that adversely affects the Company; (iv) your continued material breach of any
obligations under this Agreement 30 days after the Company has given you notice
thereof in reasonable detail, if such breach has not been cured by you during
such period; or (v) your willful misconduct with respect to your duties or gross
misfeasance of office.
For purposes of this Section 8(c), no act or failure to act, on your
part shall be considered "willful" unless it is done, or omitted to be done, by
you in bad faith or without reasonable belief that your action or omission was
in the best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board of Directors
or based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by you in good faith and in the best
interests of the Company. Your termination of employment shall not be deemed to
be for Cause unless prior to such termination you have received a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the disinterested membership of the Board of Directors at a meeting of such
Board of Directors called and held for such purpose (after reasonable notice is
provided to you and you are given an opportunity to be heard before such Board
of Directors), finding that, in the good faith opinion of the Board of
Directors, you are guilty of the conduct described in clause (i), (ii), (iii),
(iv) or (v) above.
(d) The Term shall terminate if your employment is terminated in a
Change of Control Termination (as defined in Exhibit A).
(e) The Term shall terminate upon the expiration of the thirty (30)
day period after delivery of a Termination Notice if your employment is
terminated by the Company without Cause or by you.
9. Compensation Upon Termination of Term.
(a) For Any Reason. Upon termination of the Term: (i) you or your
estate, as applicable, shall be paid within fifteen business days after your
date of termination (A) your Base Salary through the date of termination, (B)
any then-unpaid Annual Bonus or other incentive compensation that you may have
earned pursuant to the terms of any applicable incentive compensation or bonus
plan of the Company with respect to any fiscal year or other performance period
completed prior your date of termination, and (C) any then-unused accrued
vacation pay; (ii) you, your beneficiaries and/or your estate, as applicable,
shall be entitled to any payments and benefits under the benefits and incentive
plans and perquisite programs of the Company, in accordance with the respective
terms of those plans and perquisite programs (including without limitation, any
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conversion option available to you under the Company's life insurance plan(s));
and (iii) you or your estate, as applicable, shall be reimbursed for your
business expenses incurred prior to termination in accordance with Section 4
above.
(b) Change of Control Termination. Upon the termination of the Term
by reason of a Change of Control Termination, you shall receive the payments and
benefits set forth in Exhibit A.
(c) Other Involuntary Terminations or Breach Termination. Upon the
termination of the Term that is not by reason of a Change of Control
Termination, but results from either a termination by the Company without Cause
other than as a result of your death or Disability, or termination by you which
is a Breach Termination, you shall also receive the following payments and
benefits; provided, however, that any payment made or benefit provided under
this Section 9(c) shall be reduced by any amount paid or payable to you and/or
your family with respect to the same type of payment or benefit under any other
plan maintained by the Company to avoid duplication of payments or benefits:
(i) The Company shall (A) continue to pay you your Base Salary
at the rate in effect on the date of termination for a period of two
years after the end of the Term (the "Continuation Period") and (B)
pay you a cash payment equal to your Targeted Bonus Amount (as defined
below) as soon as administratively practicable following the last day
of the next two fiscal year ends of the Company.
(ii) The Company shall, for the Continuation Period, continue to
provide you and your eligible beneficiaries (if applicable) with
Welfare Benefits (as defined below) provided to you prior to the
termination, other than disability insurance and severance.
Notwithstanding the foregoing, to the extent the Company's plans
providing Welfare Benefits do not permit the continued participation
by you and/or your eligible beneficiaries or such participation would
have an adverse tax impact on such plans or on the other participants
in such plans or is otherwise prohibited by applicable law, the
Company may instead provide materially equivalent benefits to you
and/or your eligible beneficiaries outside such plans (which, in the
case of medical insurance benefits, may be provided by the Company
paying a portion of the premium for the continuation of such medical
benefits pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") which is equal to the portion of the
premium it then pays for active executive employees' medical premiums.
Your entitlement to COBRA coverage shall in any event be measured from
the date of termination of employment. Furthermore, if the Company is
unable to continue your life insurance coverage, it shall pay you an
amount equal to the premium paid during the year prior to termination
times the number of years in the Continuation Period. You agree to
complete such forms and take such physical examinations as may be
reasonably requested by the Company in connection with such life
insurance coverage.
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Your "Targeted Bonus Amount" shall mean (x) the higher of 55% and the
percentage of your targeted bonus in effect before the date of termination for
purposes of determining your Annual Bonus for the year in which your termination
occurs, times (y) the amount of your Base Salary as in effect for the year in
which your termination occurs. "Welfare Benefits" means benefits under all
health, medical, life and other welfare plans (as defined in Section 3(l) of the
Employee Retirement Income Security Act of 1974, as amended), in which you were
participating immediately prior to the date of termination, except for
disability plans and severance plans. As used in this Section 9(c), a "Breach
Termination" shall mean a termination of your employment by you due to a
material breach by the Company either prior to a Change of Control or following
two years after the occurrence of a Change of Control, of the provisions of this
Agreement, which breach is not cured within thirty (30) days following notice by
you to the Company of such breach which specifies in detail the circumstances
giving rise to such breach. In order for a termination by you to be a Breach
Termination, you must give notice to the Company of a material breach by the
Company of this Agreement within 60 days of the date you learn of the
circumstances giving rise to such material breach and you must actually give a
Termination Notice in accordance with Section 1 within the 30-day period
following the expiration of the Company's cure period for such breach.
(d) The payment by the Company of any compensation or benefits
pursuant to Section 9(c) and Exhibit A shall be conditioned on your execution of
a Release (a "Release") in a form provided by and acceptable to the Company.
Such Release shall be substantially in the form of Exhibit B hereto but may be
modified by the Company in its sole discretion as it deems appropriate to
reflect changes in law or circumstances arising after the date of this
Agreement; provided, however, that no such modification shall reduce your rights
or increase your obligations to the Company over those contemplated in this
Agreement, including the Exhibits hereto.
(e) Any payments provided for in Section 9(c)(i) will not commence
until six months after your termination to the extent necessary to avoid adverse
tax consequences to you under Section 409A of the Internal Revenue Code. Any
payments which would have otherwise been due and payable during the first six
months of the Continuation Period but for this Section 9(e) shall be paid to you
in a lump sum as of the first business day following the expiration of such
six-month period.
10. Indemnification. Prior to a Change of Control, the Company shall
indemnify you for your acts as an officer and director in the manner provided in
the by-laws of the Company, as in effect from time to time. On and after a
Change of Control, the Company shall indemnify you for your acts as an officer
and director of the Company in a manner no less favorable to you than as
provided in the current by-laws of the Company.
11. Representations. You hereby represent and warrant that you are
not subject to any employment agreement, non-competition or confidentiality
agreement or other commitment that either would be violated by your entering
into or performing your obligations under this Agreement or that would restrict
in any manner or interfere with the performance of your obligations under this
Agreement. You hereby further represent and warrant that you have not revealed
to the Company or any employee of the Company any confidential information of
any former employer, and you agree that you will not do so in the future.
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12. Entire Agreement; Modification; Construction. This Agreement,
together with the Exhibits hereto and those portions of the offer letter dated
June 15, 2005 (the "Offer Letter") not specifically addressed in this Agreement,
and all other employee benefit plans in which you participate, constitute the
full and complete understanding of the parties, and supersede all prior
agreements and understandings, oral or written, between the parties, with
respect to the subject matter hereof; provided, however, that if the terms of
any such employee benefit plan shall be inconsistent with the provisions to this
Agreement, the terms of the benefit plan shall prevail. The Offer Letter,
Exhibit A and Exhibit B are hereby incorporated by reference and made a part of
this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by either party, or anyone acting on behalf of either party, that are
not set forth or referred to herein. 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.
13. Severability. Any term or provision of this Agreement that is
held to be invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent that 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.
14. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement, which waiver must be in writing to be effective,
shall not operate as or be construed as a waiver of any subsequent breach.
15. Notices. All notices hereunder shall be in writing and shall be
sent by messenger or by certified or registered mail, postage prepaid, return
receipt requested, if to you, to your residence set forth above, and if to the
Company, to the Vice President-Human Resources, at the Company's address set
forth above, or to such other address as either party to this Agreement shall
specify to the other.
16. Assignability; Binding Effect. This Agreement shall not be
assignable by either party, except that it may be assigned by the Company to an
acquiror of all or substantially all of the assets of the Company or other
successor to the Company, subject to your rights arising from a Change of
Control as provided in Exhibit A and your other rights hereunder. 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 and detriment of the Company, its successors and assigns.
17. No Mitigation Required. No Offset. Following any termination of
your employment hereunder, you shall have no obligation to seek other employment
but shall not be prohibited from doing so, and no compensation paid to you as
the result of any other employment shall reduce any payment or benefit required
to be provided by the Company hereunder. Not in limitation of any other rights
which the Company may have, including without limitation, injunctive or other
equitable relief, in the event of a violation by you of any of the covenants set
forth in Section 5, Section 6 or Section 19 hereof, the Company may cease paying
any benefits to you under Section 9 hereof and may seek recovery of any such
amount paid to you during any period in which you were in violation of the
provisions of Section 5, Section 6 or Section 19. The cessation and/or recovery
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of any of the payments described in Section 9(c) in connection with any such
violation shall not be deemed to be evidence that monetary damages are
sufficient to cure any damage to the Company for any such violation.
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. Nondisparagement. You agree not to publicly or privately
disparage the Company, its personnel, products or services either during your
employment by the Company or during the Restricted Period.
20. Survival. All of the provisions of this Agreement that by their
terms are to be performed or that otherwise are to endure after the termination
of this Agreement and/or the termination of your employment, including, without
limitation, Sections 5, 6, 7, 10, 17 and 19, shall survive the termination of
your employment and shall continue in effect for the respective periods therein
provided or contemplated.
21. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
23. Dispute Resolution. In the event of any claim or controversy
arising out of or relating to this Agreement or the performance, construction,
interpretation, enforcement or breach hereof (excluding injunctive and other
equitable relief regarding a dispute over the covenants contained in Sections 5,
6, and 19 hereof) (a "dispute"), the parties shall settle disputes in accordance
with this Section 23.
(a) Notice and Selection of Arbitrators. The parties shall first
attempt to settle any disputes amicably between themselves. Should they fail to
do so, either party may, upon written demand from the claiming party of the
specific nature of any purported claims and the amount of damages attributable
to each such claim, served upon the other, submit such dispute to binding
arbitration. The arbitration panel shall consist of three arbitrators, shall
take place in Philadelphia, Pennsylvania and shall proceed in accordance with
the employment dispute resolution rules of the American Arbitration Association
("AAA").
Within 15 days after the commencement of arbitrations, each party
shall select one arbitrator from a list of arbitrators provided by the AAA. A
third neutral arbitrator shall be designated by the arbitrators selected by the
parties within 15 days of their appointment. In the event that any arbitrator is
not appointed within the prescribed time period, then either party may apply to
the AAA for the appointment of such arbitrator. Prior to the commencement of
hearings, each of the arbitrators appointed shall provide an oath or undertaking
of impartiality.
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(b) Hearings. After the arbitrators have been appointed as provided
above, the arbitrators shall hold such meetings as a party may reasonably
request and at such meetings hear and consider any evidence that a party desires
to present. Within 60 days after the appointment of the third arbitrator, the
arbitrators shall make their determination.
(c) Determinations. The determination of a majority of the
arbitrators shall be final and binding on the parties, regardless of whether one
of the parties fails or refuses to participate in the arbitration. The
arbitrators shall have the power and authority to grant any remedy or relief
they deem just and equitable, including injunctive relief, specific performance
(excluding, however, equitable relief regarding a dispute over the covenants
contained in Sections 5, 6 and 19 hereof), and reasonable costs and expenses
of such arbitration and attorneys' fees. Absent any specific order of the
arbitrators, the costs and expenses of the arbitration shall be paid equally by
the parties. The arbitration award, decree or order shall be in writing and
shall be accompanied by a reasoned opinion. The award may be entered in any
court of competent jurisdiction, and any judgment, decree or order entered in
any such court and any related orders may be enforced as any other judgment,
decree or order of such court. The arbitration proceedings and all materials,
submissions and documents relating thereto shall be confidential, and except
as may be required by law neither a party nor an arbitrator may disclose the
existence, contents or results of any arbitration hereunder without the consent
of all parties hereto. All disputes shall be resolved in accordance with the
laws of the Commonwealth of Pennsylvania.
(d) Qualifications of Arbitrators. Any arbitrator chosen by or
through the AAA shall be chosen from a class of disinterested experts
qualified by education, training and/or experience to resolve the particular
issue(s) in dispute in an informed and efficient manner.
(e) Preservation of Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before, during or after an
arbitration proceeding is brought. The parties shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: obtaining provisional or ancillary remedies,
including injunctive and other equitable relief with regard to disputes over the
covenants contained in Sections 5, 6 and 19 hereof.
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If you are in agreement with the foregoing, please sign the duplicate
original in the space provided below and return it to the Company.
C&D TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxx, III
--------------------------------
Xxxxxxx Xxxxxx, III
Chairman of the Board of Directors
Agreed as of the date
above written:
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
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EXHIBIT A
TO EMPLOYMENT AGREEMENT (THE "AGREEMENT")
OF XXXXXXX X. XXXXXX ("EXECUTIVE")
(Capitalized terms used herein and not otherwise defined have the meanings given
to them in the Agreement.)
I. Change of Control Termination. A "Change of Control Termination" means the
occurrence of any of the following within 24 months after a Change of Control
(as defined below): (a) the Executive's employment with the Company is
terminated by the Executive pursuant to a Termination for Good Reason (as
defined below); or (b) the Executive's employment with the Company is terminated
by the Company for any reason other than death, Disability or for Cause.
II. Certain Other Definitions.
(a) Change of Control. For purposes of the Agreement, a "Change of
Control" shall mean the first to occur of:
1. The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either (A) the then-outstanding shares
of common stock of the Company (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then-outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that, for purposes of this Section II(a)1, the
following acquisitions shall not constitute a Change of Control: (i)
any acquisition directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
majority-owned subsidiary of the Company, or (iv) any acquisition by
any corporation pursuant to a transaction that complies with
Subsections (A), (B) and (C) of Section II(a)3 below.
2. Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease, for any reason, to constitute
at least a majority of the Board of Directors; provided, however, that
any individual becoming a director subsequent to the date of the
Agreement whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of Directors.
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3. Consummation of a reorganization, merger, statutory share
exchange or consolidation or similar corporate transaction involving
the Company or any of its subsidiaries, a sale or other disposition of
all or substantially all of the assets of the Company, or the
acquisition of assets or stock of another entity by the Company or
any of its subsidiaries (each, a "Business Combination"), in each case
unless, following such Business Combination, (A) all or substantially
all of the individuals and entities that were the beneficial owners
of the Outstanding Company Common Stock and the Outstanding Company
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting
power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the
case may be, (B) no Person (excluding any corporation resulting from
such Business Combination or any employee benefit plan (or related
trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 30% or
more of, respectively, the then-outstanding shares of common stock
of the corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of
such corporation, except to the extent that such ownership existed
prior to the Business Combination, and (C) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement or of the action of
the Board of Directors providing for such Business Combination; or
4. Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, no Change of Control of the Company shall be
deemed to have occurred for purposes of this Agreement by reason of any actions
or events in which the Executive participates in a capacity other than in his
capacity as an executive or director of the Company.
(b) Termination for Good Reason. For purposes of this Exhibit A, a
"Termination for Good Reason" means a termination of the Executive's employment
by the Executive by written Termination Notice given to the Company within 90
days after the Executive learns of the occurrence of the Good Reason event. A
Termination Notice for a Termination for Good Reason shall indicate the specific
provision in Section II(c) relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for Termination for Good
Reason. The failure by the Executive to set forth in such Termination Notice any
facts or circumstances which contribute to the showing of Good Reason shall not
waive any right of Executive hereunder or preclude the Executive from asserting
such fact or circumstance in enforcing his rights hereunder. The Termination
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Notice for a Termination for Good Reason shall provide for a date of termination
not less than 10 nor more than 60 days after the date such Termination Notice is
given.
(c) Good Reason. For purposes of this Exhibit A, "Good Reason" shall mean
the occurrence, without the Executive's express written consent, of any of the
following circumstances, unless such circumstances are fully corrected prior to
the date of termination specified in the Termination Notice for a Termination
for Good Reason as contemplated in Section II(b) above: (i) any material
diminution of the Executive's positions with Company or any material positions
with its subsidiaries or affiliates, duties or responsibilities hereunder
(except in each case in connection with the termination of the Executive's
employment for Cause or due to the Executive's Disability or death, or
temporarily as a result of Executive's illness or other absence), the failure to
reelect the Executive to any office he holds with the Company as of the date of
the Change of Control, or the assignment to the Executive of duties or
responsibilities that are inconsistent with the Executive's position under the
Agreement at the time of a Change of Control; (ii) removal of the Executive
from, or the failure of the Executive to be re-elected to, the officer positions
with the Company specified in the Agreement; (iii) relocation of the Company's
principal executive offices to a location that increases the Executive's commute
to work by more than 35 miles: (iv) failure by the Company, after the Change of
Control, (A) to continue in effect, without amendment adverse to the Executive,
any bonus plan, program or arrangement in which the Executive is entitled to
participate immediately prior to the Change of Control (the "Bonus Plans"),
provided that it shall not be "Good Reason" if the Company amends or terminates
any Bonus Plan but provides the Executive with substantially similar benefits
under comparable substitute plans ("Substitute Plans"), or (B) to continue the
Executive as a participant in the Bonus Plans and/or Substitute Plans on at
least the same basis as to potential amount of the bonus and substantially the
same level of criteria for achievability thereof as the Executive participated
in immediately prior to any change in such plans or awards, in accordance with
the Bonus Plans and the Substitute Plans; (v) any failure to pay the Executive
his Base Salary in a timely manner or any reduction in the amount of the Base
Salary (vi) any material breach by the Company of any provision of the
Agreement; (vii) if the Executive is on the Company's Board of Directors at the
time of a Change of Control, the Executive's removal from or failure to be
reelected to the Board of Directors thereafter; or (viii) failure of any
successor to the Company to promptly acknowledge in writing the obligations of
the Company hereunder.
III. Payments and Benefits. If a Change of Control Termination occurs, the
Executive shall be entitled to receive, subject to the execution of the Release,
the payments and benefits set forth below in this Section III in consideration
of the Executive's agreements under the Agreement, including but not limited to
the Executive's agreement not to compete with the Company for a period of two
years after a Change of Control pursuant to Section 5(a) of the Agreement;
provided, however, that any payment made or benefit provided under this Section
III shall be reduced by any amount paid or payable to the Executive and/or the
Executive's family with respect to the same type of payment or benefit under any
other plan maintained by the Company to avoid duplication of payments or
benefits:
(a) The Company shall pay to the Executive within fifteen days following
the Change of Control Termination (or as of the first business day after the
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period in which the Executive would have otherwise incurred adverse tax
consequences under Section 409A of the Internal Revenue Code if such payment is
made within such period), a lump sum amount equal to (i) three times the sum of
(x) the Base Salary as in effect immediately before the date of termination
(disregarding any reduction thereof in violation of Section 2(a) of the
Agreement) and (y) the Annual Bonus Amount. The "Annual Bonus Amount" shall mean
the greater of (i) the average of the Annual Bonuses paid to the Executive with
respect to each of the three most recently completed fiscal years of the Company
before the date of termination for which a bonus has been paid or (ii) the
Executive's Targeted Bonus Amount.
(b) The Company shall provide the Executive with the benefits set forth in
Section 9(c)(ii) of the Agreement, but based upon a "Continuation Period" of
three years after the date of termination.
(c) All outstanding Options and restricted stock awards that have been
granted to the Executive by the Company at any time but have not yet expired or
vested and upon which vesting depends solely upon the Executive's remaining
employed by the Company for a specified period of time, shall immediately vest
or become nonforfeitable, as the case may be. In the event the foregoing
sentence becomes applicable, the Company agrees to cause the Board of Directors
to take all steps necessary to implement the foregoing sentence.
(d) The Company, at its expense, shall provide the Executive with
outplacement services at a level appropriate for the most senior level of
executive employees through an outplacement firm of the Executive's choice for a
period of up to one year after the date of the Change of Control Termination.
IV. Certain Additional Payments.
(a) Anything in the Agreement and this Exhibit A to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any Payment would be subject to the Excise Tax, then the
Executive shall be entitled to receive an additional payment (the "Gross-Up
Payment") in an amount such that, after payment by the Executive of all taxes
(and any interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties imposed
with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section IV(a), if it shall be determined that the Executive is entitled to the
Gross-Up Payment, but that the Parachute Value of all Payments does not exceed
110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made to the
Executive and the amounts payable under this Agreement shall be reduced so that
the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor
Amount. The reduction of the amounts payable hereunder, if applicable, shall be
made by first reducing the payments under Section III(a) of this Exhibit A
unless an alternative method of reduction is elected by the Executive, and in
any event shall be made in such a manner as to maximize the Value of all
Payments actually made to the Executive. For purposes of reducing the Payments
to the Safe Harbor Amount, only amounts payable under this Agreement (and no
other Payments) shall be reduced. If the reduction of the amount payable under
this Agreement would not result in a reduction of the Parachute Value of all
Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall
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be reduced pursuant to this Section IV(a). The Company's obligations under this
Section IV shall not be conditioned upon the Executive's termination of
employment, and they shall survive the termination of the Executive's employment
and the Term with respect to any Payments that are determined by the Accounting
Firm to be contingent on a "change of control" (as defined in Section 280G of
the Code) of the Company that occurs during the Term.
(b) Subject to the provisions of Section IV(c), all determinations
required to be made under this Section IV, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by KPMG, or such
other nationally recognized certified public accounting firm as may be
designated by the Executive (the "Accounting Firm"). The Accounting Firm shall
provide detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive that there
has been a Payment or such earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive may
appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section IV, shall be paid by the Company to the
Executive within five business days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments that will not
have been made by the Company should have been made (the "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
the Company exhausts its remedies pursuant to Section IV(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting
Firm shall determine the amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the Company to or for the benefit
of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable, but no later than ten business days after the Executive is informed
in writing of such claim. The Executive shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that the Company desires to contest such claim,
the Executive shall:
(1) give the Company any information reasonably requested by the
Company relating to such claim,
(2) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
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respect to such claim by an attorney reasonably selected by the
Company,
(3) cooperate with the Company in good faith in order to effectively
contest such claim, and
(4) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section IV(c),
the Company shall control all proceedings taken in connection with such contest,
and, at its sole discretion, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the applicable taxing
authority in respect of such claim and may, at its sole discretion, either
direct the Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties) imposed with respect to such
advance or with respect to any imputed income in connection with such advance;
and provided, further, that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which the Gross-Up Payment would be payable hereunder,
and the Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of a Gross-Up Payment or an
amount advanced by the Company pursuant to Section IV(c), the Executive becomes
entitled to receive any refund with respect to the Excise Tax to which such
Gross-Up Payment relates or with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section IV(c), if
applicable) promptly pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If, after
the receipt by the Executive of an amount advanced by the Company pursuant to
Section IV(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
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(e) Notwithstanding any other provision of this Section IV, the Company
may, in its sole discretion, withhold and pay over to the Internal Revenue
Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of any Gross-Up Payment, and the Executive hereby
consents to such withholding.
(f) Definitions. The following terms shall have the following meanings for
purposes of this Section IV.
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended,
or any successor thereto.
(ii) "Excise Tax" shall mean the excise tax imposed by Section 4999
of the Code, together with any interest or penalties imposed with respect
to such excise tax.
(iii) "Parachute Value" of a Payment shall mean the present value as
of the date of the change of control for purposes of Section 280G of the
Code of the portion of such Payment that constitutes a "parachute payment"
under Section 280G(b)(2), as determined by the Accounting Firm for purposes
of determining whether and to what extent the Excise Tax will apply to such
Payment.
(iv) A "Payment" shall mean any payment or distribution in the nature
of compensation (within the meaning of Section 280G(b)(2) of the Code) to
or for the benefit of the Executive, whether paid or payable pursuant to
this Agreement or otherwise.
(v) The "Safe Harbor Amount" means 2.99 times the Executive's "base
amount," within the meaning of Section 280G(b)(3) of the Code.
(vi) "Value" of a Payment shall mean the economic present value of a
Payment as of the date of the change of control for purposes of Section
280G of the Code, as determined by the Accounting Firm using the discount
rate required by Section 280G(d)(4) of the Code.
V. Legal Fees. If, following a Change of Control, if the Company fails to
perform any of its obligations under this Agreement or the Company or any other
person asserts the invalidity of any provision of this Agreement and the
Executive incurs any costs in successfully enforcing or defending any of the
provisions of this Agreement, including legal fees and expenses and court costs,
the Company shall reimburse the Executive for all such costs incurred by him,
unless the trier of fact in such dispute determines that the Executive has not
been at least partially successful in such enforcement or defense.
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EXHIBIT B
RELEASE
This Release is made this _____ day of _______________, ____ by and
between C&D Technologies, Inc. ("Employer") and _________________ ("Employee").
Recitals:
WHEREAS, the parties are parties to an Employment Agreement (the
"Employment Agreement") dated __________, pursuant to which Employee was
employed by Employer; and
WHEREAS, Employee's employment and the Term, as defined in the
Employment Agreement, have terminated; and
WHEREAS, the execution and delivery of this Release by Employee is a
condition to the Employer's obligations to pay certain compensation and provide
certain benefits to Employee under the Employment Agreement;
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. As of _____________________, ____, Employee's employment with
Employer shall terminate, and Employee shall have no further job
responsibilities to perform for Employer; provided, however, that Employee shall
cooperate with Employer in transitioning Employee's job responsibilities as
Employer shall reasonably request, provided that Employee shall be entitled to
receive reasonable compensation for any services rendered prior to such date and
shall not be obligated to take any action that would interfere with any
subsequent employment of Employee or otherwise result in economic hardship to
Employee.
2. Employer shall pay and provide to Employee the amounts and
benefits contemplated pursuant to Section __ [and Exhibit A] of the Employment
Agreement, less applicable deductions; provided however, the first payment shall
not be due and payable until ten days after the execution by Employee and
delivery to Employer of this Release, or if later, the first business day
following the date that payment would subject the Employee to adverse tax
consequences under Section 409A of the Internal Revenue Code. Any payment
which would have otherwise been made but for the restrictions of Section 409A
of the Internal Revenue Code will be paid in a lump sum at the expiration of
any applicable restriction.
3. For and in consideration of the monies and benefits paid to
Employee by Employer, as more fully described in Section 2 above, and for other
good and valuable consideration, Employee hereby waives, releases and forever
discharges Employer, its assigns, predecessors, successors, and affiliated
entities, and its current or former stockholders, officers, directors,
administrators, agents, servants and employees, individually and as
representatives of the corporate entity (hereinafter collectively referred to as
"Releasees"), from any and all claims, suits, debts, dues, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, bonuses, controversies,
B-1
agreements, promises, charges, complaints, damages, sums of money, interest,
attorney's fees and costs, or causes of action of any kind or nature whatsoever
whether in law or equity, including, but not limited to, all claims arising out
of his employment or termination of employment with Employer, such as all claims
for wrongful discharge, breach of contract, either express or implied,
interference with contract, emotional distress, fraud, misrepresentation,
defamation, claims arising under the Civil Rights Acts of 1964 and 1991, as
amended, the Americans With Disabilities Act, the Age Discrimination in
Employment Act (ADEA), the National Labor Relations Act, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974 (ERISA), as
amended, the Family and Medical Leave Act, the Pennsylvania Human Relations Act,
the Pennsylvania Wage Payment & Collection Law, the Pennsylvania Minimum Wage
Act of 1968, the Pennsylvania Equal Pay Law, and any and all other claims
arising under federal, state or local law, rule, regulation, constitution,
ordinance or public policy whether known or unknown, arising up to and including
the date of execution of this Release; provided, however, that the parties do
not release each other from any claim of breach of the terms of this Release.
This release of rights does not extend to claims that may arise after the date
of this Release, including without limitation, for payments or benefits
described in Section 2 of this Release, nor to claims under employee benefit
plans that are qualified under Section 401(a) of the Internal Revenue Code, nor
to any rights of indemnification by the Company to which the Employee is
otherwise entitled. Employee agrees that Employee will not initiate any charge
or complaint or institute any claim or lawsuit against Releasees or any of them
based on any fact or circumstance occurring up to and including the date of the
execution by Employee of this Release based upon a claim that is released
hereunder.
4. 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.
5. Employee affirms that the only consideration for the signing of
this Release are the terms stated herein and in the Employment Agreement 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.
6. Employee and Employer affirm that the Employment Agreement 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.
7. Employee acknowledges that Employee has been given a period of at
least 21 days within which to consider this Release.
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8. Following the execution of this Release, Employee has a period of
seven days from the date of execution to revoke this Release, and this Release
shall not become effective or enforceable until the revocation period has
expired.
9. 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.
10. Employee acknowledges and agrees that the execution of this
Release does not supercede any of the provisions of the Employment Agreement
which otherwise survive the termination of Employee's employment with the
Employer, including without limitation, Section 5, 6, 7 and 19 thereof.
11. Employee acknowledges that Employer advised Employee to consult
with an attorney prior to executing this Release.
12. 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 aforesaid
consideration.
IN WITNESS WHEREOF, Employee and the authorized representative of
Employer have executed this Release on the dates indicated below:
C&D TECHNOLOGIES, INC.
Dated: By:
------------------------------- -------------------------------------
Title:
-----------------------------------
Dated:
------------------------------- -----------------------------------------
(Name of Employee)
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ENDORSEMENT
I, ___________________________________, hereby acknowledge that I was
given 21 days to consider the foregoing Release and voluntarily chose to sign
the 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 __________________, ____, at
____________________________, Pennsylvania.
--------------------------
(Name of Employee)
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