Exhibit 10.33
RELEASE
This Release is made this 19th day of April, 2005 by and between C&D
Technologies, Inc. ("Employer") and David A. Fix ("Employee").
Recitals:
WHEREAS, the parties are parties to an Employment Agreement dated March 1,
2001, as amended on March 1, 2001 and January 29, 2004 (the "Employment
Agreement"), pursuant to which Employee was employed by Employer; and
WHEREAS, the Employment Agreement has terminated; and
WHEREAS, your execution and delivery of this Release is a condition to the
Employer's obligations to pay certain compensation and benefits to you 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 April 5, 2005, 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 after 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 to the Employee those amounts payable pursuant to the
terms of the Employment Agreement upon involuntary termination of Employee's
employment, without cause, 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. Employer shall pay such
provider as may be selected by Employee and be reasonably acceptable to
Employer, an amount, not to exceed $10,000, for outplacement services rendered
to Employee over a period not to exceed twelve months commencing no later than
June 1, 2005. "Accrued vacation" for purposes of this Agreement, shall be the
equivalent of 22 vacation days (176 hours) payable at base pay ($96.15/hour),
net of standard deductions. Further, C&D agrees to reply truthfully to any
application made by Employee for unemployment benefits.
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, 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), 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. 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.
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 restrictive covenants set forth
in Sections 6, 7, 8 and 17of the Employment Agreement survive pursuant to
Section 18 thereof, and 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. Notwithstanding the foregoing, Employee shall be permitted to
solicit for future employment, Gail Nixon, provided that such solicitation
occurs during non-business hours. 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. C&D agrees to advise its seniormost employees that they
may not publicly or privately disparage Employee.
7. Employee acknowledges that Employee has been given a period of at
least 21 days within which to consider this Release.
8. Following the execution of this Release, the Employee has a period of
7 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 that Employer advised Employee to consult with
an attorney prior to executing this Release.
11. 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: 26 April 2005 By: /s/ G. MacKenzie
--------------- ------------------------------------
George MacKenzie
President and Chief Executive Officer
Dated: 19 April 2005 /s/ David A. Fix
--------------- ------------------------------------
David A. Fix
ENDORSEMENT
I, David A. Fix, 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 19th day of April, 2005, at Malvern, Pennsylvania.
/s/ David A. Fix
---------------------------------
David A. Fix