Exhibit 10.31
RELEASE
This Release is made this 14th day of December, 2005 by and between C&D
Technologies, Inc. ("Employer") and Stephen E. Markert, Jr. ("Employee").
Recitals:
WHEREAS, the parties are parties to an Employment Agreement (the
"Employment Agreement") dated March 31, 2000, as amended April 6, 2000, pursuant
to which Employee was employed by Employer; and
WHEREAS, the Employment Agreement has terminated and the parties entered
into certain arrangements as described in a Letter Agreement dated August 15,
2005 (the "Letter Agreement"); and
WHEREAS, Employee's execution and delivery of this Release is a condition
to the Employer's obligations to pay certain compensation and benefits to
Employee under the Employment Agreement and the Letter 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 December 14, 2005, Employee's employment with Employer shall
terminate (the "Termination Date"), 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. Following the Termination Date, 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 the first regular C&D pay day following the execution by Employee,
delivery to Employer and non-revocation of this Release by Employee. After the
execution by Employee, delivery to Employer and non-revocation of this Release,
Employer will additionally pay Employee for fourteen (14) vacation days, the sum
of $100,000, net of standard deductions, in accordance with the notice letter
dated August 15, 2005, and reimburse Employee for up to $10,000 in pre-approved
outplacement services incurred within twelve (12) months from the Termination
Date. The timing for payments to Employee shall be made in the manner elected by
Employee, in writing, in response to the letter dated August 15, 2005 concerning
the application of the provisions of the American Jobs Creation Act to the
payments described in this paragraph.
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 and 17 of the Employment Agreement survive pursuant to Section
18 thereof, and the Employment Agreement, the Letter Agreement, 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.
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
("Computer Files"); provided, however, that Employee may retain permanent
possession of Employer's laptop computer with all of the Computer Files deleted
and Employer's Blackberry previously used by Employee. Employee shell not keep
and will return to Employer 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: 12/15/05 By: /s/ Jeffrey A. Graves
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Jeffrey A. Graves
President and Chief Executive Officer
Dated: 12/14/05 /s/ Stephen E. Markert, Jr.
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Stephen E. Markert, Jr.
ENDORSEMENT
I, Stephen E. Markert, Jr., 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 14th day of December, 2005, at Blue Bell, Pennsylvania.
/s/ Stephen E. Markert, Jr.
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Stephen E. Markert, Jr.