8-K

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): July 21, 2010

Exide Technologies
__________________________________________
(Exact name of registrant as specified in its charter)

Delaware	1-11263	23-0552730
_____________________ (State or other jurisdiction	_____________ (Commission	______________ (I.R.S. Employer
of incorporation)	File Number)	Identification No.)
13000 Deerfield Parkway, Building 200, Milton, Georgia		30004
_________________________________ (Address of principal executive offices)		___________ (Zip Code)

Registrant’s telephone number, including area code: (678) 566-9000

Not Applicable
______________________________________________
Former name or former address, if changed since last report

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

[  ]  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[  ]  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[  ]  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[  ]  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Entry Into Side Letter

On July 21, 2010, the Board of Directors (the "Board") of Exide Technologies (the "Company") approved and entered into a side letter ("Side Letter") to Gordon Ulsh’s Amended and Restated Employment Agreement dated as of January 31, 2008 (as subsequently amended from time to time, the "Amended Employment Agreement") to address certain potential adverse tax consequences resulting from Mr. Ulsh’s agreement to extend his employment to July 26, 2010. Under the Amended Employment Agreement, certain shares underlying awards held by Mr. Ulsh are to be delivered six months after the conclusion of his employment with the Company. In light of Mr. Ulsh’s agreement to extend his service as Chief Executive Officer through July 26, 2010 rather than the previously expected June 30, 2010, the certificated shares will no longer be delivered on December 31, 2010, but instead will be delivered on January 26, 2011. In light of possible higher tax rates that may become effectiv e January 1, 2011, Mr. Ulsh’s marginal tax rate may rise, resulting in higher taxable income for the shares of common stock that will be delivered on January 26, 2011 than if they had been delivered on December 31, 2010. Consequently, the Board has approved the entry into the Side Letter to address any potential higher tax obligations relating to his extended service.

Under the terms of the Side Letter, Mr. Ulsh will receive an additional payment calculated based on the income recognized as a result of the delivery of the 278,421 shares of common stock multiplied by the difference between Mr. Ulsh’s 2010 and 2011 marginal tax rate. The additional payment calculation will be limited to the closing price of the Company’s common stock at December 31, 2010 in the event the price of the Company’s common stock increases between such date and January 26, 2011. Additionally, if Mr. Ulsh’s marginal tax rate for 2011 does not increase from 2010 levels, no additional payment will be provided.

Resignation of Mr. Ulsh

On July 21, 2010, Mr. Ulsh notified the Board of his resignation from his position as director effective July 26, 2010. His resignation did not result from any disagreements with management or the Board. Mr. Ulsh’s employment with the Company, as its Chief Executive Officer terminated on July 26, 2010 in accordance with the terms of the Amended Employment Agreement.

Entry into Restricted Stock Award Agreement

On July 21, 2010, the Board approved, and on July 26, 2010 entered into, a Restricted Stock Award Agreement with James R. Bolch related to 750,000 shares of restricted stock granted to Mr. Bolch as an inducement award made by the Company in accordance with the terms of his employment agreement. Mr. Bolch received the shares of restricted stock granted under the Restricted Stock Award Agreement upon the commencement of his employment with the Company as its President and Chief Executive Officer on July 26, 2010.

Item 9.01 Financial Statements and Exhibits.

10.1 Restricted Stock Award Agreement, dated July 26, 2010, by and between Exide Technologies and James R. Bolch.

10.2 Side Letter Agreement, dated July 26, 2010, by and between Exide Technologies and Gordon A. Ulsh.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	Exide Technologies
July 26, 2010	By:	Phillip A. Damaska
		Name: Phillip A. Damaska
		Title: Executive Vice President and Chief Financial Officer

Exhibit Index

Exhibit No.	Description
10.1	Restricted Stock Award Agreement, dated July 26, 2010, by and between Exide Technologies and James R. Bolch
10.2	Side Letter Agreement, dated July 26, 2010, by and between Exide Technologies and Gordon A. Ulsh

EX-10.1

EXIDE TECHNOLOGIES

RESTRICTED STOCK AWARD AGREEMENT

This RESTRICTED STOCK AWARD AGREEMENT (this “Agreement”) is entered into as of July 26, 2010 between EXIDE TECHNOLOGIES, a Delaware corporation (the “Company”) and JAMES R. BOLCH (“Executive”).

WHEREAS, the Company and Executive are parties to an employment agreement dated June 10, 2010 (the “Employment Agreement”); and

WHEREAS, in accordance with Section 5(b)(iv) of the Employment Agreement, in consideration of Executive’s entering into employment with the Company, Executive is to receive a grant of 750,000 shares of common stock, par value $0.01 per share, of the Company (“Common Stock”) as restricted shares on the date on which he commences his employment with the Company.

NOW, THEREFORE, the Company, as of July 26, 2010 (the “Date of Grant”), hereby grants to Executive 750,000 shares of restricted Common Stock (the “Restricted Shares”), effective as of the Date of Grant, subject to the following terms, conditions, limitations and restrictions.

1. Issuance of Restricted Shares. The Restricted Shares covered by this Agreement shall be issued to Executive effective upon the Date of Grant. The shares of Common Stock subject to this grant of Restricted Shares shall be registered in Executive’s name and shall be fully paid and nonassessable. Any certificate or other evidence of ownership shall bear an appropriate legend referring to the restrictions hereinafter set forth.

2. Documents Delivered with Agreement. The Company has delivered to Executive, along with a copy of this Agreement, a copy of the Company’s most recent integrated Annual Report to Shareholders and Form 10-K (the “Annual Report”). By executing this Agreement, Executive acknowledges receipt of these documents.

3. Restrictions on Transfer of Shares. The shares of Common Stock subject to this grant of Restricted Shares may not be sold, exchanged, assigned, transferred, pledged, encumbered or otherwise disposed of by Executive, except to the Company, unless the Restricted Shares are nonforfeitable as provided in Section 4 or Section 7 hereof; provided, however, that Executive’s rights with respect to such shares of Common Stock may be transferred by will or pursuant to the laws of descent and distribution. Any purported transfer or encumbrance in violation of the provisions of this Section 3 shall be void, and the other party to any such purported transaction shall not obtain any rights to or interest in such shares of Common Stock. The Company may, in its sole discretion, waive the restrictions on transferability with respect to all or a portion of the shares of Common Stock subject to this grant of Restricted Shares.

4. Vesting of Restricted Shares. Subject to Section 7 of this Agreement, all of the Restricted Shares covered by this Agreement shall become nonforfeitable on the third anniversary of the Date of Grant, if Executive remains in the continuous employ of the Company or any subsidiary through such date (the “Vesting Date”).

5. Forfeiture of Shares. Notwithstanding any other provision of this Agreement to the contrary but except as otherwise provided in Section 7 of this Agreement, any unvested Restricted Shares shall be forfeited if Executive’s employment with the Company or a subsidiary is terminated prior to the Vesting Date. In the event of a forfeiture, the certificate(s) representing the Restricted Shares covered by this Agreement shall be cancelled.

6. Dividend, Voting and Other Rights. Except as otherwise provided herein, from and after the Date of Grant, Executive shall have all of the rights of a stockholder with respect to the Restricted Shares covered by this Agreement, including the right to vote such Restricted Shares and receive any dividends that may be paid thereon; provided, however, that any additional shares of Common Stock or other securities that Executive may become entitled to receive pursuant to a stock dividend, issuance of rights or warrants, stock split, combination of shares, recapitalization, merger, consolidation, separation, or reorganization or any other change in the capital structure of the Company shall be subject to the same restrictions, and Executive shall have the same rights and privileges with respect thereto, as the Restricted Shares covered by this Agreement.

7. Termination of Employment. In the event Executive’s employment is terminated (a) by the Company without Cause (as defined in the Employment Agreement), (b) by Executive with Good Reason (as defined in the Employment Agreement), (c) by the Company due to Executive’s “Disability” (as defined in the Employment Agreement), (d) due to the expiration and non-renewal of the Employment Period (as defined in the Employment Agreement) by the Company, or (e) due to Executive’s death, any Restricted Shares that remain unvested at the time of such termination shall become fully vested on the Date of Termination (as defined in the Employment Agreement).

8. Retention of Stock Certificate(s) by the Company. Certificates representing the shares of Common Stock subject to this grant of Restricted Shares, if any, will be held in custody by the Company together with a stock power endorsed in blank by Executive with respect thereto, until those shares have become nonforfeitable in accordance with Section 4 or Section 7.

9. Section 83(b) Election Notice. If Executive is a U.S. citizen and makes an election under Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to Executive’s Restricted Shares (a “Section 83(b) Election”), Executive agrees to provide a copy of such election to the Company within 10 days after filing that election with the Internal Revenue Service. A sample form of Section 83(b) Election is attached hereto as Exhibit A.

10. Registration of Common Stock. As soon as practicable following the Date of Grant, the Company shall file a registration statement on Form S-8 under the Securities Act of 1934, as amended, to register the vested shares of Common Stock received pursuant to this grant of Restricted Shares for resale and, upon request by Executive, shall make reasonable efforts to promptly update such registration statement as required by applicable securities laws.

11. Taxes and Withholding. (a) To the extent that the Company shall be required to withhold any federal, state, local or foreign taxes in connection with the issuance or vesting of the Restricted Shares (including in the event that Executive makes an election under Section 83(b) of the Code with respect to the Restricted Shares), and the amounts available to the Company for such withholding are insufficient, Executive shall pay such taxes or make provisions that are satisfactory to the Company for the payment thereof. Unless otherwise determined by the Board of Directors of the Company (the “Board”), Executive may elect to satisfy all or any part of any such withholding obligation by (i) paying cash, (ii) surrendering to the Company a portion of the shares of Common Stock that are issued or transferred to Executive or that become nontransferable by Executive hereunder, and the shares of Common Stock so surrendered by Executive shall be credited against any such withholding obligation at the Market Value per Share of such shares of Common Stock on the date of such surrender, or (iii) a combination of such methods.

(b) For purposes of this Agreement, “Market Value per Share” means, as of any particular date (the “Determination Date”), the following:

(i) Prior to May 5, 2011, (A) the average closing price of the Common Stock for the ten consecutive trading days immediately preceding, but not including, the Determination Date as reported on the Nasdaq Stock Market; or (B) if such shares of Common Stock are not traded on the Nasdaq Stock Market but are quoted on the New York Stock Exchange or the American Stock Exchange, or a successor system, the average closing price of the Common Stock for the ten consecutive trading days immediate preceding, but not including, the Determination Date; or (C) if such shares of Common Stock are not traded on the Nasdaq Stock Market or on any other national securities exchange, but are otherwise traded in the over-the-counter market, the average mean between the representative bid and asked prices for the ten consecutive trading days immediately preceding, but not including, the Determination Date; or (D) if subsections (A) through (C) hereof do not apply, the fair market value established in good faith by the Board. Notwithstanding the previous sentence, in the event the Market Value per Share, as calculated under subsections (A) through (D) hereof, is less than the closing price of the Common Stock on the Date of Grant, then the Market Value per Share shall be equal to the closing price of the Common Stock on the Date of Grant.

(ii) Effective May 5, 2011, the closing sale price of the Common Stock as reported on the Nasdaq Stock Market or, if not listed on such exchange, on any other national securities exchange on which the Common Stock is listed. If the Common Stock is not traded as of any given date, the Market Value per Share means the closing price for the Common Stock on the principal exchange on which the Common Stock is traded for the immediately preceding date on which the Common Stock was traded. If there is no regular public trading market for the Common Stock, the Market Value per Share of the Common Stock shall be the fair market value of the Common Stock as determined in good faith by the Board.

12. Compliance with Law. The Company shall make reasonable efforts to comply with all applicable federal and state securities laws; provided, however, notwithstanding any other provision of this Agreement, the Company shall not be obligated to issue any shares of Common Stock pursuant to this Agreement if the issuance thereof would result in a violation of any such law.

13. Continuous Employment. For purposes of this Agreement and except to the extent an event described in Section 7 occurs, the continuous employment of Executive with the Company or any subsidiary shall not be deemed to have been interrupted, and Executive shall not be deemed to have ceased to be an employee of the Company or subsidiary, by reason of (a) the transfer of his employment among the Company and its subsidiaries or (b) a leave of absence approved by the Board.

14. Certain Determinations. Application, violation, or other interpretation of the terms of this Agreement shall be determined by the Board, in its sole discretion, and its determination shall be final and binding on Executive and the Company. No member of the Board will be liable for any such action or determination made in good faith.

15. Amendments. Any amendment to the Employment Agreement shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment shall adversely affect the rights of Executive under this Agreement without Executive’s prior written consent.

16. Severability. If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid or unenforceable, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected, and the provisions so held to be invalid or unenforceable shall be reformed to the extent (and only to the extent) necessary to make it enforceable and valid.

17. Governing Law. This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.

18. Complete Agreement. This Agreement and the Employment Agreement embody the complete agreement and understanding between the parties with respect to the subject matter hereof and supersede and preempt any prior understandings, agreements or representations by or between the parties, written or oral, that may have related to the subject matter hereof in any way.

19. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute the same instrument.

BY EXECUTIVE’S SIGNATURE BELOW, along with the signature of the Company’s representative, Executive and the Company agree that the Restricted Shares are awarded under and governed by the terms and conditions of this Agreement.

EXIDE TECHNOLOGIES

By:

[A duly authorized Director or Officer]

Address:	13000 Deerfield Parkway
	Building 200
	Milton, GA 30004

The undersigned hereby accepts the terms of this Agreement.

James R. Bolch

Address:      

Exhibit A

Section 83(b) Election Form

Attached is an Internal Revenue Code Section 83(b) Election Form. IF YOU WISH TO MAKE A SECTION 83(B) ELECTION, YOU MUST DO SO WITHIN 30 DAYS AFTER THE DATE THE RESTRICTED SHARES COVERED BY THE ELECTION WERE TRANSFERRED TO YOU. In order to make the election, you must completely fill out the attached form and file one copy with the Internal Revenue Service office where you file your tax return. In addition, one copy of the statement also must be submitted with your income tax return for the taxable year in which you make this election. Finally, you also must submit a copy of the election form to the Company within 10 days after filing that election with the Internal Revenue Service. A Section 83(b) election normally cannot be revoked.

EXIDE TECHNOLOGIES

________________________________________________________
Election to Include Value of Restricted Shares in Gross Income
in Year of Transfer Under Internal Revenue Code Section 83(b)
_________________________________________________________

Pursuant to Section 83(b) of the Internal Revenue Code, I hereby elect within 30 days after receiving the property described herein to be taxed immediately on its value specified in item 5 below.

1. My General Information:

Name:	—
Address:	—

S.S.N.

• r T.I.N.:       

2. Description of the property with respect to which I am making this election:

       shares of Common Stock of Exide Technologies.

3. The Restricted Shares were transferred to me on              , 20      . This election relates to the 20       calendar taxable year.

4. The Restricted Shares are subject to the following restrictions:

The Restricted Shares are forfeitable until they are earned in accordance with the Restricted Stock Award Agreement (“Agreement”). The Restricted Shares generally are not transferable until my interest becomes vested and nonforfeitable, pursuant to the Agreement.

5. Fair market value:

The fair market value at the time of transfer (determined without regard to any restrictions other than restrictions which by their terms never will lapse) of the Restricted Shares with respect to which I am making this election is $    per share.

6. Amount paid for Restricted Shares:

The amount I paid for the Restricted Shares was $    per share.

7. Furnishing statement to employer:

A copy of this statement has been furnished to my employer,       . If the transferor of the Restricted Shares is not my employer, that entity also has been furnished with a copy of this statement.

8. Agreement not affected:

Nothing contained herein shall be held to change any of the terms or conditions of the Agreement.

Dated:              , 20      .

Taxpayer

Board of Directors of Exide Technologies
13000 Deerfield Parkway
Building 200
Milton, Georgia 30004

July 26, 2010

Mr. Gordon A. Ulsh
Chief Executive Officer
Exide Technologies
13000 Deerfield Parkway
Building 200
Milton, Georgia 30004

Re: Side Letter to Amended and Restated Employment Agreement

Dear Mr. Ulsh:

This letter agreement (this “Letter Agreement”) is executed and delivered as an amendment to the Amended and Restated Employment Agreement (as subsequently modified, supplemented or amended from time to time, the “Employment Agreement”), dated as of January 31, 2008, by and between you, Gordon A. Ulsh, (the “Executive”) and Exide Technologies, a Delaware corporation (the “Company”). Except as otherwise defined herein, capitalized terms used in this Letter Agreement have the meanings assigned to them in the Employment Agreement.

The undersigned hereby acknowledge and agree as follows:

1. Additional Payment. To the extent that there is an increase in the highest aggregate federal and state marginal tax rate for an individual residing in the state of Georgia with respect to income recognized in 2011 as compared to 2010 (such increase in tax rate referred to herein as the “Increase in Tax Rate”), and Executive, pursuant to Sections 5(f)(v) and 5(f)(vi) of the Employment Agreement, recognizes taxable income in 2011 as a result of his receipt of certain share certificates six months after Executive’s separation from service (the “Deferred Share Certificates”), then the Company shall pay to the Executive an additional amount (the “Additional Amount”). The Additional Amount shall be calculated such that, after Executive’s payment of all taxes incurred by Executive as result of Executive’s receipt of the Additional Amount, Executive retains an amount equal to the Increase in Tax Rate multiplied by the taxable income recognized by Executive in 2011 as a result of his receipt of the Deferred Share Certificates; provided that such taxable income shall be based on the closing price of the Company’s common stock on The NASDAQ Global Market on December 31, 2011 if such closing price on January 26, 2011 is higher than the closing price on December 31, 2010. The Additional Payment, if any, shall be paid by the company to the Executive on the later of April 15, 2012 or any other date in 2012 on which the Executive files his federal and state tax returns for the calendar year ended December 31, 2011.

2 Withholding. All payments hereunder shall be subject to any required withholding of federal, state and local taxes pursuant to any applicable law or regulation.

3. Notice. For the purposes of this Letter Agreement, notices, demands and all other communications provided for in this Letter Agreement shall be in writing and shall be deemed to have been duly given when delivered in accordance with Section 12 of the Employment Agreement.

4. Successors; Binding Letter Agreement. The rights and benefits of Executive hereunder shall not be assignable, whether by voluntary or involuntary assignment or transfer by Executive. This Letter Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Company, and the heirs, executors and administrators of Executive, and shall be assignable by the Company to any entity acquiring substantially all of the assets of the Company, whether by merger, consolidation, sale of assets or similar transactions.

5. Amendment. No provisions of this Letter Agreement may be amended, modified, or waived unless such amendment, modification, or waiver is agreed to in writing signed by Executive and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. No waiver by either party hereto at any time of any breach by the other party hereto of any condition or provision of this Letter Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

6. Governing Law. This Letter Agreement is governed by, and is to be construed and enforced in accordance with, the laws of Delaware without regard to principles of conflicts of laws. If, under such law, any portion of this Letter Agreement is at any time deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto or, if that is not possible, to be omitted from this Letter Agreement, and the invalidity of any such portion shall not affect the force, effect and validity of the remaining portion hereof.

7. Counterparts. This Letter Agreement may be executed in two or more-counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

8. Effect on Employment Agreement. Except as otherwise expressly set forth herein, this Letter Agreement shall not, by implication or otherwise, alter, modify, amend or in any way affect any of the terms, conditions, obligations or agreements contained in the Employment Agreement and the Employment Agreement shall remain in full force and effect in accordance with its terms.

9. Section Headings. The section headings in this Letter Agreement are for convenience of reference only, and they form no part of this Letter Agreement and shall not affect its interpretation.

Please confirm your undersigning of, and legally binding agreement with, the foregoing by signing and returning a copy of this Letter Agreement to the undersigned at the address set forth above.

Sincerely,

     
John P. Reilly,
Chairman of the Board of Directors

ACCEPTED AND AGREED

     
Gordon A. Ulsh

Dated: