December 20, 2007
Leonard P. Kiely
846 Fulton Avenue
Lansdale, PA 19422
Dear Leonard:
C&D Technologies, Inc., a Delaware corporation (the "Company"),
wishes to continue 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 $310,000 per year,
payable in such manner as is consistent with the Company's payroll practices for
executives and subject to increase (but not decrease) 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
minimum targeted bonus for each fiscal year of 35% of your Base Salary (with the
actual payment of any bonus being dependent on your or the Company's 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) To the extent that any payment hereunder or under any plan,
program or policy is determined to be nonqualified deferred compensation that is
noncompliant with Section 409A ("Section 409A") of the Internal Revenue Code of
1986, as amended (the "Code"), and is therefore subject to additional taxes and
penalties, the Company shall provide you with additional payments as more fully
set forth in Exhibit A. Any reference to Section 409A shall be deemed to include
any applicable guidance that has been provided thereunder.
(f) You shall be entitled to a minimum of four weeks of vacation
each calendar year during the Term. To the extent that Company policy provides
additional vacation days, you shall also be entitled to such additional vacation
days. Any unused vacation days in any one year shall carry over to the next
calendar year.
(g) The Company will provide you at its expense with an annual
physical examination each year during the Term.
3. Duties.
(a) During the Term, you shall serve and the Company shall employ
you as the Vice President and Chief Operating Officer of the Company, with such
executive duties and responsibilities consistent with such positions and stature
as the Chief Executive Officer of the Company may from time to time determine.
Your duties may be changed at any time and from time to time hereafter, upon
mutual agreement, consistent with the office or offices in which you serve as
deemed necessary by the Chief Executive Officer of the Company. You shall report
to, and act under the general direction of, the Chief Executive Officer of the
Company. You shall use your best efforts to carry out the instructions of the
Chief Executive Officer of the Company. You also agree to perform such other
services and duties consistent with the office or offices in which you are
serving from time to time and those responsibilities as may from time to time be
prescribed by the Board of Directors. You also agree to serve as an officer
and/or director of the Company and/or any of the Company's other direct or
indirect subsidiaries, in all cases in
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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.
(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 one-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 known 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 and materially affects the Company; (iv) your continued breach of
any of your material 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), stating the clause pursuant to which the Board of
Directors has effected your termination. If you appeal this decision to
arbitrators pursuant to Section 23, the arbitrators shall be required to make a
de novo review of the circumstances of your termination and independently
determine whether facts exist to support such termination.
(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 voluntarily by you (a termination by
you not due to Breach or a termination by you without Good Reason).
9. Compensation Upon Termination of Employment. Separation pay
shall be paid in accordance with the schedule set forth below upon a termination
of employment that constitutes a "separation from service" as defined under
Section 409A ("Separation from Service"). If a termination of employment does
not constitute a Separation from Service, separation pay shall be paid at such
later time that a Separation from Service occurs. For purposes of this
Agreement, the default definition of Separation from Service under the Final
Regulations promulgated under Section 409A shall be employed.
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(a) For Any Reason. Upon termination of employment: (i) you or your
estate, as applicable, shall be paid within fifteen business days after your
date of termination (A) your accrued and unpaid Base Salary through the date of
termination, (B) any then-vested and 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 to 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 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 employment
by reason of a Change of Control Termination, you shall receive the payments and
benefits set forth in Exhibit A.
(c) Termination without Cause or Breach Termination. Upon the
termination of employment that is not by reason of a Change of Control
Termination, but results from either (1) a termination by the Company without
Cause (excluding a termination due to death or Disability), or (2) a termination
by you which is a Breach Termination (as defined below), you shall also receive
the following payments; provided, however, that any payment made under this
Section 9(c) shall be reduced by any amount paid or payable to you with respect
to the same type of payment under any other plan maintained by the Company to
avoid duplication of payments:
(i) The Company shall pay you an amount equal to your Base
Salary at the rate in effect on the date of termination. Payment of
such amount will commence in the form of normal payroll installments
through the period ending as of the end of the second month
following the later of (A) the calendar year in which your
termination of employment occurs or (B) the taxable year of the
Company in which your termination of employment occurs. The balance
of such payments shall be made in a single lump sum payable within
the fifteen day period immediately following the end of the month in
which installment payments are to cease.
(ii) If you terminate employment on or after May 1st of a
fiscal year, you shall be entitled to an Annual Bonus for that
fiscal year, based on the actual bonus earned under the applicable
bonus plan for the fiscal year, pro-rated to reflect the number of
business days during the fiscal year in which you were employed by
the Company. This bonus shall be paid only when and if bonuses are
paid to other senior executives of the Company for such year, but,
if any such bonus is payable, it shall be paid no later than the
15th day of the third month following the earlier of (A) the
calendar year in which your termination of employment occurs or (B)
the taxable year of the Company in which your termination of
employment occurs.
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As used in this Section 9(c), a "Breach Termination" means a
termination of your employment by you by written Termination Notice given to the
Company within 90 days after the occurrence of any action or inaction that
constitutes a material breach by the Company of the Agreement. A Termination
Notice for a Breach Termination shall indicate the specific action or inaction
that constitutes the material breach, shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for the Breach Termination,
and shall provide the Company a minimum of 30 days in which to remedy such facts
or circumstances. Your failure to set forth in such Termination Notice any facts
or circumstances which contribute to the showing of Breach Termination shall not
constitute your waiver of any right hereunder or preclude you from asserting
such fact or circumstance in enforcing your rights hereunder. The Termination
Notice for a Breach Termination shall provide for a date of termination not less
than 30 nor more than 60 days after the date such Termination Notice is given.
Notwithstanding the foregoing, should a termination of employment by
the Company without Cause or a Breach Termination occur within six months prior
to, or within two years after, a Change of Control, your termination shall be
considered a Change of Control Termination and you shall vest in the payments
and benefits set forth in Exhibit A. Any such payments or benefits shall be
offset by any payments or benefits that you may have been already paid or
received due to the occurrence of the termination of employment prior to the
Change of Control, and shall be paid in accordance with Exhibit A.
(d) The payment by the Company of any compensation or the
provision of benefits, if any, pursuant to Section 9(c) and Exhibit A shall be
conditioned on your execution, without revocation, 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. No Release shall be required for any benefits to which you are entitled
under the terms of any plan.
10. Indemnification. At all times, prior to, on or after a Change
of Control, the Company shall indemnify you for your acts as an officer and
director to the fullest extent permitted by law. Further, the Company shall
provide you with advance attorneys fees and expenses to you as they are incurred
subject to presentation of invoices.
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.
12. Entire Agreement; Modification; Construction. This Agreement,
together with the Exhibits hereto, all employee benefit plans in which you
participate, and any outstanding awards, including, without limitation, equity
awards, constitute the full and complete
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understanding of the parties, and supersede all prior agreements and
understandings, oral or written, between the parties, including, but not limited
to the offer letter dated April 3, 2006 and the employment agreement dated
February 1, 2006, with respect to the subject matter hereof. 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 parties.
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
acquirer 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. Prior to a
Change of Control, any successor to the Company shall be required to acknowledge
in writing its obligations hereunder as successor to the Company to the extent
that the Company has not fulfilled its obligations prior to the Change of
Control or any amounts or benefits are still due to you after the Change of
Control.
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 compensation and benefits, if any, 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 of any of the
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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 a
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/ Jeffrey A. Graves
--------------------------
Jeffrey A. Graves
Title: President & Chief Executive Officer
Agreed as of the date
above written:
/s/ Leonard P. Kiely
- ---------------------------------
Leonard P. Kiely
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EXHIBIT A
TO EMPLOYMENT AGREEMENT (THE "AGREEMENT")
OF LEONARD P. KIELY ("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 six months
before or 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 (1) a Breach Termination, if
the termination occurs within six months prior to a Change of
Control, or (2) a Termination for Good Reason (as defined below), if
the termination occurs after a Change of Control; 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. Separation payments that constitute nonqualified
deferred compensation set forth in this Exhibit A shall
be paid upon a Change in Control Termination that
constitutes a Separation from Service. For purposes of
this Exhibit A, the default definition of "Separation
from Service" under the Final Regulations promulgated
under Section 409A shall be employed.
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
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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.
3. Consummation of a reorganization, merger,
statutory share exchange, recapitalization 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.
(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 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, shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for Termination for Good
Reason, and shall provide the Company a minimum of 30 days in which
to
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remedy such facts or circumstances. 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 Notice for a Termination for Good Reason
shall provide for a date of termination not less than 30 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) a material
diminution in the Executive's authority, duties, or
responsibilities; (ii) a material diminution in the authority,
duties, or responsibilities of the supervisor to whom the Executive
is required to report, including, if applicable. a requirement that
the Executive report to a corporate officer or employee instead of
reporting directly to the board of directors; (iii) a material
diminution in the budget over which the Executive retains authority;
(iv) a material relocation of the Company's principal executive
offices (or such other office to which the Executive is required to
report); (v) a material diminution in the Executive's Base Salary or
(vi) any other action or inaction that constitutes a material breach
by the Company of the Agreement.
III. Payments and Benefits.
Separation pay upon a Change in Control Termination shall be paid in
accordance with this Section III provided that such termination
constitutes a "separation from service" as defined under Section 409A
("Separation from Service"). If a Change of Control Termination does not
constitute a Separation from Service, separation pay shall be paid at such
later time that a Separation from Service occurs.
Upon a Separation from Service occurring upon or after a Change of Control
Termination, 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 one year after a Change of
Control Termination 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, including without limitation, any amounts that were
paid upon termination of employment prior to the Change of Control:
(a) The Company shall pay to the Executive within fifteen days
following the Change of Control Termination, a lump sum amount equal to
(i) two 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
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Bonus Amount, plus (ii) $10,000. 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. The Executive's "Targeted
Bonus Amount" shall mean (x) the higher of 35% and the percentage of the
Executive's targeted bonus in effect before the date of termination for
purposes of determining the Executive's Annual Bonus for the year in which
the termination occurs, times (y) the amount of the Executive's Base
Salary as in effect for the year in which the Executive's termination
occurs (disregarding any reduction thereof in violation of Section 2(a) of
the Agreement).
(b) The Company shall, until the earlier of 18 months after the date
of the Change of Control Termination and such time that the Executive
obtains alternative coverage, pay or reimburse the Executive for the
Company's and the Executive's portion of the cost to provide the Executive
and the Executive's eligible beneficiaries (if applicable) health and
medical coverage under the Company's health and medical plans provided
that the Executive timely elects COBRA coverage upon termination of
employment. In addition, for two years after the date of the Change of
Control, the Company shall provide the Executive with life insurance
coverage under the Company's life insurance policy. Notwithstanding the
foregoing, to the extent the Company's plans do not permit the continued
participation by the Executive and/or the Executive's eligible
beneficiaries or such participation would have an adverse tax impact on
such plans or on the other participants in such plans or the continued
participation is otherwise prohibited by applicable law, or if such
continuance would constitute nonqualified deferred compensation that does
not comply with Section 409A, the Company may instead provide materially
equivalent benefits to the Executive and/or the Executive's eligible
beneficiaries outside such plans. For purposes of this Agreement,
"materially equivalent benefits" means the aggregate premiums that the
Company would have paid to maintain the Executive's coverage under the
health, medical and life insurance plans. The Executive agrees to complete
such forms and take such physical examinations as may be reasonably
requested by the Company in connection with life insurance coverage.
(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,
and the Company shall, in the case of Options that are not exercised or
cashed out, extend the period during which such Options may be exercised
to the greatest extent permitted by the applicable plan, Section 409A or
other applicable law. The Company agrees 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.
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IV. Certain Additional Payments.
(a) Anything in the Agreement and this Exhibit A to the contrary
notwithstanding, in the event it shall be determined that any Payment or
any other amounts or benefits delivered to the Executive under the
Agreement or any other agreement, plan, policy or program, including,
without limitation, equity awards, 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 and after the payment of all additional taxes and
interest imposed under Code Section 409A(a)(1)(B) on the Gross-Up Payment
and any separation payment made to the Executive hereunder, 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 and 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 amounts payable under this
Agreement would not result in a reduction of the Parachute Value of all
Payments to the Safe Harbor Amount, no amount payable under the Agreement
shall 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. In furtherance of the foregoing, the provisions of
this IV(a) shall supersede any provision of any equity award or agreement
that limits payment of such award or agreement due to Section 280G or 4999
of the Code, and the Company shall take any necessary action to amend such
every such award or agreement to comply with this provision.
(b) Anything in the Agreement and this Exhibit A to the contrary
notwithstanding, in the event it shall be determined that any amounts or
benefits delivered to the Executive under the Agreement or any other
agreement, plan, policy or program shall be deemed to be nonqualified
deferred compensation that does not comply with Section 409A
("Noncompliant 409A Payment"), and that is therefore subject to the taxes
and penalties under Section 409A (the "409A Taxes"), then the Executive
shall be entitled to receive an additional payment (the "409A 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 taxes imposed upon the 409A
Gross-Up Payment, the Executive shall retain an amount of the 409A
Gross-Up Payment equal to the 409A Taxes imposed upon the Payments.
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(c) Subject to the provisions of Section IV(d), all determinations
required to be made under this Section IV, including whether and when a
Gross-Up Payment or 409A Gross-Up Payment is required, the amount of such
Gross-Up Payment or 409A Gross-Up Payment, and the assumptions to be
utilized in arriving at such determination, shall be made by any
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 a payment that the Executive
reasonably believes to be a Noncompliant 409A 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, or 409A
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, which determination shall be made
no later than the end of the second month following the later of (1) the
calendar year in which the Executive's employment with the Company
terminates and (2) the taxable year of the Company in which the
Executive's employment with the Company terminates. Payment of the
Gross-Up Payment or the 409A Gross-Up Payment shall be made as soon as
practicable after such determination has been made, but in no event shall
payment be made later than the end of the Executive's taxable year next
following the Executive's taxable year in which the Executive shall have
remitted the related taxes.
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 Sections 4999 and 409A of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments and 409A 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 or 409A Taxes,
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.
(d) 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 or the 409A 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
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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
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) or 409A Taxes 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 or 409A 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.
(e) If, after the receipt by the Executive of a Gross-Up Payment or
409A Gross-Up Payment or an amount advanced by the Company pursuant to
Section IV(d), 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
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(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.
(f) 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 or 409A
Gross-Up Payment, and the Executive hereby consents to such withholding.
(g) 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) "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) "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.
(h) 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 or other payments
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that are determined by the Accounting Firm to be either (i) contingent on
a "change of control" (as defined in Section 280G of the Code) of the
Company that occurs during the Term, or (ii) nonqualified deferred
compensation that does not comply with Section 409A.
(i) Any Gross-Up Payment or 409A Gross-Up Payment shall be made no
later than the end of the Executive's taxable year following the taxable
year in which the Executive remits the related taxes.
V. Legal Fees. If, following a Change of Control, 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. Any reimbursement under this Section V shall be
made no later than the end of calendar year following the calendar year in
which such costs are incurred by the Executive.
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EXHIBIT B
RELEASE
This Release is made this _____ day of _______________, ____ by and
between C&D Technologies, Inc. ("Employer") and Leonard P. Kiely ("Employee").
Recitals:
WHEREAS, the parties are parties to an Employment Agreement (the
"Employment Agreement") dated December 20, 2007, 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 9 [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..
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
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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 or advancement of expenses to
which the Employee is otherwise entitled, nor to any equity awards that are
outstanding on the date of termination. 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.
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.
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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:
_____________________________________ _________________________________
Leonard P. Kiely
B-3
ENDORSEMENT
I, Leonard P. Kiely, 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.
_______________________
Leonard P. Kiely
B-4