SEPARATION AGREEMENT AND MUTUAL RELEASE
THIS SEPARATION AGREEMENT AND MUTUAL RELEASE (this "Agreement") is made and
entered into as of March 31, 1999, by and between KENETECH CORPORATION (the
"Company"), a Delaware corporation, and XXXXXX X. XXXXX (the "Employee"), an
individual currently employed by the Company as Controller.
RECITALS
The Company has employed the Employee since 1991.
B. The Company and the Employee have previously entered into an agreement
concerning the payment of certain bonuses to the Employee during 1998.
C. The Employee and the Company desire to mutually terminate the Employee's
employment with the Company and to compromise, settle and release fully and
finally all outstanding matters between the Employee and the Company,
including all matters relating to the Employee's employment with the
Company, his separation from the Company and the termination of his
employment with the Company.
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, and for other good and valuable consideration, the Company and
the Employee agree as follows:
Separation Date. The Company and the Employee have agreed that the Employee's
employment with the Company shall terminate effective at the close of business
on March 31, 1999 (the "Separation Date"). The Employee understands and agrees
that, effective as of the Separation Date, he is no longer authorized to incur
any expenses, obligations or liabilities on behalf of the Company and he has
submitted or will submit for reimbursement, with appropriate supporting
documentation, all outstanding expenses incurred by him prior to such date.
2. Resignation. The execution of this Agreement shall confirm the Employee's
resignation as an officer and employee of the Company effective as of the
Separation Date.
Terms of Separation. In consideration of the agreements by the Employee provided
herein, including, without limitation, the release by the Employee in Section 4
below, the Company agrees as follows:
(a) In full satisfaction of any claims by the Employee in connection with his
employment or the termination of his employment, including, but not limited
to, any claims for compensation, bonuses, retention payments, severance
payments, fringe benefits, change in control benefits, options,
out-placement services or any other payments, the Company shall pay to the
Employee a lump sum amount equal to $281,250.00 (which consists of a
$250,000 bonus and a $31,250 severance payment), less all applicable
deductions, on or prior to the Separation Date. The Employee shall receive,
prior to the Separation Date, payment of all accrued vacation. Upon receipt
of such accrued vacation pay and any bi-weekly salary payments for the
month of March, 1999 not previously paid to the Employee, the Employee
acknowledges that he has received his full salary, vacation pay and
benefits from the Company in accordance with the Company's regular payroll
practices. The Employee further acknowledges that he received a bonus of
$81,250 on the first bi-weekly payday in January 1999.
(b) The Company shall deduct and withhold, from the compensation payable to the
Employee under this Agreement, any and all Federal, State and local income
and employment withholding taxes and any other amounts required to be
deducted or withheld by the Company under any applicable statute or
regulation.
(c) The Employee shall cease participation in all employee benefit plans of the
Company effective as of the Separation Date, and the Company thereafter
shall not be liable for any payments on behalf of the Employee in respect
of any fringe benefits provided by the Company.
4. Mutual Releases.
(a) Release By the Employee. Except as to any claims arising out of rights
provided under this Agreement, in consideration of the agreements set forth
herein, the Employee hereby irrevocably and unconditionally releases,
acquits and forever discharges the Company and any related entity and their
stockholders, predecessors, successors, assigns, agents, directors,
officers, employees, representatives, attorneys, divisions, and
subsidiaries, and all persons acting by, through, under or in concert with
any of them (collectively, the "Company Releasees"), or any of them, from
any and all charges, complaints, claims, assertions of claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes
of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs actually incurred) of any nature
whatsoever, whether known or unknown, suspected or unsuspected, arising
directly or indirectly out of the Employee's employment with the Company,
his separation from employment with the Company or the termination of his
employment with the Company, which the Employee or his heirs, executors,
administrators, agents, successors or assigns, now has, or ever claimed to
have, or could claim against each or any of the Company Releasees, from the
beginning of time to the present, including, without limitation, any of the
following: claims for workers' compensation, claims in equity or law for
wrongful discharge, personal injury claims, claims under federal, state or
local laws prohibiting discrimination on account of age, national origin,
race, sex, disability, religion and other protected classifications, or
claims under the Civil Rights Acts of 1866 and 1871, as amended, Title VII
of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991,
the Age Discrimination in Employment Act of 1967, as amended, the Employee
Retirement Income Security Act of 1974, as amended, the Americans with
Disabilities Act of 1990, the Family Medical and Leave Act, and the
California Fair Employment and Housing Act or any comparable law of any
other State (collectively, the "Employee Claims"). The Employee hereby
agrees to forego any right to file any charges or complaints with any
governmental agencies or any legal action against the Company Releasees
under any of the laws referenced in this subparagraph or with respect to
any of the Employee Claims. Notwithstanding the foregoing, the release by
the Employee in this subparagraph shall not limit the right of the Employee
to seek to enforce the provisions of this Agreement.
(b) Release By The Company. Except as to any claims arising out of rights
provided under this Agreement, in consideration for the agreements set
forth herein, the Company hereby irrevocably and unconditionally releases,
acquits and forever discharges for itself and its agents, successors and
assigns, the Employee and his successors and assigns (collectively, the
"Employee Releasees"), or any of them, from any and all charges,
complaints, claims, assertions of claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs actually incurred) of any nature whatsoever,
known or unknown, suspected or unsuspected, arising directly or indirectly
out of the Employee's employment with the Company, his separation from
employment with the Company or the termination of his employment with the
Company, which the Company now has, or ever claimed to have, or could claim
against each or any of the Employee Releasees. The Company hereby agrees to
forego any right to file any charges or complaints with any governmental
agencies or any legal action against the Employee Releasees under any of
the laws referenced in this paragraph or with respect to any of the
foregoing claims. Notwithstanding the foregoing, the release by the Company
in this subparagraph shall not limit the right of the Company to seek to
enforce the provisions of this Agreement.
5. Waiver of Unknown Claims. The Company and the Employee acknowledge that
they are aware that they may hereafter discover claims or facts different
from or in addition to those they now know or believe to be true with
respect to the matters herein released, and except as to any claims arising
out of the rights provided under this Agreement, they agree that the mutual
releases set forth above shall be and remain in effect in all respects a
complete general release as to the matters released and all claims relative
thereto which may exist or may heretofore have existed, notwithstanding any
such different or additional facts. The Company and the Employee
acknowledge that they have considered the possibility that they may not
fully know the number or magnitude of all of the claims which they have or
may have against each other and the Releasees of the other party and intend
to assume the risk that they are releasing unknown claims. The Company and
the Employee acknowledge that they have been informed of Section 1542 of
the Civil Code of the State of California and, except as set forth in this
Agreement, they do hereby expressly waive and relinquish all rights and
benefits which they have or may have under such Section, which reads as
follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
The Company and the Employee understand and acknowledge the significance
and consequences of such specific waiver of Section 1542 and, except as set
forth in this Agreement, hereby assume full responsibility for any injuries,
damages or losses that they may incur as the result of such waiver.
6. Indemnification and Insurance. To the extent permitted by applicable law,
the Company agrees that all rights to indemnification from the Company
existing under the law and under the Company's certificate of incorporation
and by-laws as of the date hereof, in favor of the Employee as an officer,
employee, or agent of the Company shall survive this Agreement and shall
continue in full force and effect with respect to any liability for any
acts or omissions by the Employee during the period of his employment by
the Company. The Company further agrees that, for so long as it maintains
directors' and officers' liability insurance that covers any employees of
the Company, it shall include the Employee among the insured employees;
provided, however, that this Agreement shall not be construed or implied as
an obligation to continue to maintain directors' and officers' liability
insurance for active or former employees for any period of time.
7. Confidentiality and Non-disclosure Agreements.
(a) The Employee acknowledges that any confidentiality, proprietary or
ownership rights or nondisclosure agreement(s) in favor of the Company or
the Company Releasees which he may have entered into in connection with his
employment (the "Nondisclosure Agreement(s)") by the Company, are
understood to survive, and do survive, the termination of his employment
and this Agreement, and accordingly nothing in this Agreement shall be
construed as terminating, limiting or otherwise affecting any such
Nondisclosure Agreement(s) or the Employee's obligations thereunder.
(b) The Employee agrees that, except to the extent compelled by law or legal
process or except to the extent he is required to disclose to governmental
authorities in connection with any inquiry, audit or assessment relating to
the taxation of any payments provided for herein or except in any
litigation or arbitration proceeding between the Company and the Employee
as provided herein (in which case the Employee will use his best efforts to
ensure that such information is maintained as confidential by the persons
to whom he is compelled or required to disclose such information), the
Employee will not: (i) disclose or communicate confidential information of
the Company to any third party (including governmental agencies and
employees and former employees of the Company); (ii) make use of
confidential information of the Company for his own behalf, or on behalf of
any third party; or (iii) facilitate, assist, persuade or attempt to
facilitate, assist or persuade any third party to commence or prosecute any
legal proceedings against the Company or any Company Releasees. If the
Employee receives, is notified of, or is served with a subpoena, summons,
complaint, order, notice, notice of deposition or any other legal process
or request for information in connection with any legal or quasi-legal
proceeding, including, but not limited to, any action at law or equity,
arbitration, administrative proceeding or governmental, self-regulating
organization or stock exchange investigation, relating to the performance
of his services as an employee, officer or as a director of the Company, or
which, if complied with by the Employee, might compel or lead to the
disclosure by the Employee of confidential information of the Company, the
Employee shall immediately notify the Company and provide the Company with
a copy of the same.
8. Company Property and Information. The Company and the Employee agree that
the Employee, as of the Separation Date, has returned or will return to the
Company all Company Information (defined below) and files containing
Company Information; credit cards; cardkey passes; door and file keys;
automobiles; computer access codes, computer discs, magnetic media;
software; and all other physical property which the Employee received in
connection with his employment. The term "Company Information" as used in
this Agreement means confidential or proprietary business or financial
information of the Company. The Employee further represents and warrants
that he has not, except in the ordinary course of business and in
accordance with Company policies and procedures, destroyed or discarded any
documents or information.
9. Confidentiality of This Agreement.
(a) The Employee and the Company mutually represent and agree that, except
to the extent required by law or as otherwise provided herein, they
will keep the terms, and the fact, of this Agreement completely
confidential and they will not hereafter disclose any information
concerning this Agreement to any person; provided, however, that the
Employee may disclose the terms, and the fact, of this Agreement to
his immediate family and either party may disclose the terms hereof to
his or its legal and tax advisors, if such persons agree to keep such
information confidential and not disclose it to others, except as
provided herein or as otherwise required by applicable laws and
regulations. The Company will file with the Securities and Exchange
Commission a current report on Form 10-K disclosing the Employee's
resignation and may make such other disclosure as required or
appropriate under applicable laws and regulations. Without limitation
of the foregoing, the Company and the Employee further mutually
represent and agree that they will not make any statements, whether of
a public or private nature, to any person that reasonably could be
construed as damaging to the business, image, reputation or integrity
of the other, except such statements as he or his legal advisers may
make in connection with a disclosure permitted herein.
(b) The Company agrees that it shall respond to all inquiries concerning
the Employee's employment by the Company, including inquiries by
prospective employers, by confirming the dates of the Employee's
employment and the positions he held.
(c) The provisions set forth in subparagraphs (a) and (b) above are
material terms of this Agreement, and a breach of any of those
provisions shall constitute a material breach of this Agreement.
(d) The Employee (including the Employee Releasees) and the Company
(including the Company Releasees) specifically reserve all of their
rights in connection with any claims for personal injuries and
non-economic damages, including or resulting from injuries to their
health and personal reputation, business reputation, defamation,
tortious denial of contract, tortious interference with contract,
intentional or negligent infliction of emotional distress, mental
suffering, anxiety, anguish, humiliation, fraud, violation of public
policy, or any other damages which may arise out of any conduct by the
Employee or by the Company or it officers, directors, employees or
agents which is inconsistent with the provisions of subparagraphs (a)
and (b) above.
10. Consideration. The Company and the Employee mutually acknowledge that
neither is required to enter into this Agreement, and the Employee
acknowledges that the consideration to be received by him under this
Agreement is adequate and that the promises and agreements made by the
Company in this Agreement are in consideration of the Employee's agreement
to provide the releases set forth in Section 4 above.
11. Receipt of This Agreement. The Employee acknowledges that he has been given
the opportunity to consider the terms of this Agreement for up to
twenty-one (21) days.
12. Revocability. This Agreement is revocable by the Employee for seven (7)
days after it is signed by him. This Agreement shall not be effective or
enforceable until eight (8) days after the Employee signs this Agreement
and shall only be effective and enforceable if he does not revoke it in the
meantime. To revoke this Agreement, the Employee shall deliver a letter of
revocation to the Company at 000 Xxxxxxx Xxxxxx, Xxxxx 000 within seven (7)
days following the date the Employee signs this Agreement, and such letter
of revocation shall be accompanied by the Employee's repayment in full of
all amounts paid by the Company to or on behalf of the Employee pursuant to
Section 3 hereof, exclusive of accrued vacation and regular bi-weekly
salary payments.
13. Voluntary Agreement. The Employee represents and agrees that he has been
advised by the Company of his right to discuss all aspects of this
Agreement with his attorneys, that he has voluntarily chosen not to avail
himself of this right, that he has carefully read and fully understands all
of the provisions of this Agreement, and that he is voluntarily entering
into this Agreement.
14. General Provisions.
(a) The Employee represents and acknowledges that in executing this
Agreement, he does not rely and has not relied upon any
representation, inducement, agreement or statement not set forth
herein made by any of the Company Releasees or by any of the Company
Releasees' agents, representatives or attorneys with regard to the
subject matter of this Agreement or otherwise.
(b) The provisions of this Agreement are severable, and if any part of it
is found to be unenforceable, the other provisions shall remain fully
valid and enforceable. This Agreement shall survive the termination of
any arrangements contained herein.
(c) The Company and the Employee mutually agree that neither may assign
this Agreement, or any rights or obligations under this Agreement, to
any person or entity without the express prior written approval of the
other.
(d) This Agreement sets forth the entire agreement between the Company and
the Employee and supersedes any and all prior agreements or
understandings between the Company and the Employee pertaining to the
subject matter hereof. This Agreement shall inure to the benefit of
and be binding upon the successors in interest and assigns of each
party except as otherwise provided herein.
(e) The effect, intent and construction of this Agreement shall be
governed by the laws of the State of California, without giving effect
to the conflict of laws rules thereof.
(f) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
IN WITNESS WHEREOF, the Company and the Employee have duly executed this
Agreement as of the date first set forth above.
KENETECH CORPORATION
By_________________________ ___________________________
Name: Xxxx X. Xxxxxx XXXXXX X. XXXXX
Title: President and Chief Executive Officer