SEPARATION AGREEMENT AND MUTUAL RELEASE
THIS SEPARATION AGREEMENT AND MUTUAL RELEASE (the "Agreement") is made and
entered into as of March 12, 1997, by and between KENETECH CORPORATION (the
"Company"), a Delaware corporation, and MICHAEL A. HAAS (the "Employee"), who
has been employed by the Company.
RECITALS
A. The Company and the Employee are parties to an Employment Agreement dated
April 12, 1996 (the "Employment Agreement") pursuant to which the Employee
has acted as a Vice President of the Company. The Company is terminating
the Employee's employment on or about April 11, 1997.
B. The Employee acknowledges that he has received full salary, vacation pay
and benefits payments from the Company in accordance with the Company's
regular payroll practices to date.
C. The Employee and the Company desire to compromise, settle and release fully
and finally all outstanding matters between the Employee and the Company,
including all matters relating to the Employment Agreement, the Employee's
employment, his separation from the Company and the termination of his
employment.
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:
1. Separation Date. The Company and the Employee agree that the Employee's
employment by the Company shall terminate effective April 11, 1997 (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. He acknowledges that
he has been reimbursed for all expenses incurred by him to date.
2. Termination. The execution of this Agreement shall confirm the Employee's
termination as an officer and employee of the Company effective as of the
Separation Date.
3. Terms of Separation. In consideration of the agreements by the Employee
provided herein, including, without limitation, the releases by the
Employee in Paragraph 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 (but subject to Section
12(e) below), severance payments or benefits, change in control
benefits, and outplacement services, the Company shall pay to the
Employee a lump sum amount equal to $95,700.00 less all applicable
deductions within five (5) business days following the Separation
Date.
(b) The Employee has ceased participation in all employee benefit plans of
the Company effective as of the Separation Date, and the Company shall
not be liable for any payments to or on behalf of the Employee in
respect of any fringe benefits. The foregoing shall not be in lieu of
any continued health care coverage to which the Employee or his
dependents would otherwise, at the Employee's expense, be entitled in
accordance with the requirements of Code Section 4980B by reason of
termination of his employment.
(c) The Employee's employment will be deemed terminated effective on the
Separation Date.
(d) The Company will 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 the
applicable statute or regulation.
4. Mutual Releases.
(a) Release By The Employee. Except as to any claims arising out of rights
provided under this Agreement, in consideration for the agreements set
forth herein, the Employee hereby irrevocably and unconditionally
releases, acquits and forever discharges for himself and his heirs,
executors, administrators, agents, successors and assigns, KENETECH
Corporation and any related entity (other than KENETECH Windpower,
Inc. and its subsidiaries) 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, known or unknown, suspected or unsuspected,
arising directly or indirectly out of any interactions between the
Employee or his heirs, executors, administrators, agents, successors
or assigns, and the Company Releasees from the beginning of time to
the present, including but not limited to any matter arising out of
the Employment Agreement, the Employee's employment by the Company,
his separation from employment with the Company, or the termination of
the Employee's employment, 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, including, without limitation, any of the following: claims
in equity or law for wrongful discharge, and 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, 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 paragraph or with
respect to any of the Employee Claims. Notwithstanding the foregoing,
the release by the Employee in this paragraph shall not limit the
right of the Employee to seek to enforce the provisions of this
Agreement, including without limitation the provisions of Paragraph 8
below.
(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 any interactions between the
Company and the Employee Releasees from the beginning of time to the
present, arising out of the Employment Agreement, the Employee's
employment by the Company, his separation from employment with the
Company, or the termination of the Employee's employment, which the
Company now has, or ever claimed to have, or could claim against each
or any of the Employee Releasees (collectively, the "Company Claims").
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 with respect to any of the Company Claims.
Notwithstanding the foregoing, the release by the Company in this
paragraph shall not limit the right of the Company to seek to enforce
the provisions of this Agreement, including without limitation the
provisions of Paragraph 8 below.
(d) 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 Separation Date, 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 former employees of
KENETECH Corporation whose employment terminated in April 1997 or
earlier, it shall include the Employee among the insured former
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. The Employee shall hold the Company
harmless from any liability arising out of his tax situation and any
taxes, penalties, or other assessments that may hereafter be asserted
on account of any payments or other compensation hereunder, over and
above taxes withheld and paid in a timely manner by the Company.
5. Waiver of Unknown Claims. The Employee acknowledges that he is aware that
he may hereafter discover claims or facts different from or in addition to
those he now knows or believes 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, he agrees that the 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 Employee acknowledges that he has considered the
possibility that he may not fully know the number or magnitude of all of
the claims which he has or may have against the Company and the Company
Releasees and, except as set forth in this Agreement and Paragraph 8 below,
intends to assume the risk that he is releasing unknown claims. The
Employee acknowledges that he has been informed of Section 1542 of the
Civil Code of the State of California and, except as set forth in this
Agreement and Paragraph 8 below, he does hereby expressly waive and
relinquish all rights and benefits which he has 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 Employee understands and acknowledges the significance and consequences
of such specific waiver of Section 1542 and, except as set forth in this
Agreement and Paragraph 8 below, hereby assumes full responsibility for any
injuries, damages or losses that he may incur as the result of such waiver.
6. 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;
and (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 (collectively, "Legal
Process") 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
(collectively, "Litigation"), 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.
7. Company Property and Information. The Company and the Employee agree that
the Employee shall, as of the Separation Date, return to the Company all
Company Information (defined below) and files containing Company
Information; credit cards; cardkey passes; door and file keys; computers,
computer access codes, computer discs, and 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.
8. Confidentiality of This Agreement.
(a) The Employee and the Company mutually represent and agree that, except
to the extent required by law, 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 in Paragraph 6(b) above; provided,
however, that either party may make any disclosures that may be
required or appropriate under applicable laws or regulations.
(b) The provisions set forth in subparagraph (a) above are material terms
of this Agreement, and a breach of any of those provisions shall
constitute a material breach of this Agreement.
9. 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 Paragraph 4 above.
10. 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 whether 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.
11. Notices. Any notice given to either party to this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or
sent by certified mail, postage prepaid, return receipt requested, duly
addressed to the party concerned at the address indicated below or to such
changed address as such party may subsequently give such notice of.
If to the Company: KENETECH Corporation
500 Sansome Street, Suite 300
San Francisco, CA 94111
Attn: General Counsel
If to the Employee: Michael A. Haas
1737 University Avenue
Palo Alto, CA 94301
12. 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) Except as set forth in subparagraphs (e) and (f) below, 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,
including the Employment Agreement and any other agreements relating
to the Employee's employment. Except as specifically set forth in
Paragraph 6 hereof, the Employment Agreement shall be null and void as
of the Separation Date. 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) With respect to the Asset Sale Compensation Agreement between the
Employee, KENETECH International Ltd. ("KIL"), a subsidiary of the
Company, and KENETECH Windpower, Inc. ("KWI"), now debtor in
possession, dated as of May 17, 1996, as amended by Addendum dated
August 26, 1996 and as it may be further amended from time to time,
the parties hereto agree as follows:
(i) Nothing herein shall be deemed to alter or amend such agreement
insofar as KWI's obligations to the Employee are concerned; and
(ii) The parties acknowledge that KIL shall have no further
obligations to the Employee under such agreement except with
respect to sale of the asset identified as "Gaspe" on Table 2b
thereto.
(f) Nothing herein shall amend or alter the Incentive Stock Option
Agreement between the Employee and KENETECH Corporation dated as of
March 25, 1993 or the Grant of Stock Option between the Employee and
KENETECH Corporation dated as of April 12, 1996, or any grant of stock
options thereunder.
(g) 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.
(h) 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: Mark D. Lerdal MICHAEL A. HAAS
Title: Chief Executive Officer Date Signed: March __, 1997
Date Signed: March __, 1997