EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
12th day of April, 1996, by and between KENETECH Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx Xxxx, an individual currently employed
by the Company or its affiliates (the "Employee" or "you").
RECITALS
A. The Employee is assuming new responsibilities as an executive officer of
the Company.
B. The Company and the Employee desire to enter into a written employment
agreement on the terms set forth below.
NOW THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Employment. Unless terminated in connection with a Termination For Cause
(as defined below), the Employee will be employed by the Company at an
annual base salary of $125,000 and with the same employee benefits
applicable as of the date of this Agreement.
2. Employment Duties. The Company will employ you as a Vice President of the
Company. You agree to perform in good faith and to the best of your ability
all services which may be required of you in your executive position and to
be available to render such services at all reasonable times and places in
accordance with reasonable directives and assignments issued by the
Company's Chief Executive Officer and the Board of Directors. During your
employment, you will devote your full time and effort to the business and
affairs of the Company within the scope of your executive office.
3. Benefits.
3.1 Payments. The Company and you have agreed that if your
employment with the Company is terminated for any reason
(other than a Termination For Cause), (a) you will receive
severance payments equal to your base salary for a period of
one (1) year from and after the effective date of your
termination, and (b) you and your eligible dependents will
continue to receive the Company's health care coverage and
life insurance (on the same terms as you had while an
employee) for one year after the date of termination.
3.2 Termination For Cause. If you commit one or more acts of
fraud, embezzlement, misappropriation of property or
information or engage in any other conduct materially
adversely affecting the business reputation of the Company,
you may be terminated for cause (a "Termination For Cause")
and you will not be paid any of the payments or benefits
described in this Agreement.
3.3 Change in Control. Upon a Change In Control, the Company
will pay you a lump sum amount equal to one year's base
salary. For purposes of this Agreement, "Change in Control"
means:
(i) a merger or acquisition in which the Company is not the surviving
entity, except for a transaction the principal purpose of which is to
change the State of the Company's incorporation;
(ii) the sale, transfer or other disposition of all or substantially all of
the assets of the Company in liquidation or dissolution of the
Company;
(iii)any reverse merger in which the Company is the surviving entity, but
in which fifty percent (50%) or more of the Company's outstanding
voting stock is transferred to holders different from those who held
the stock immediately prior to such merger; or
(iv) the acquisition of more than fifty percent (50%) of the Company's
outstanding voting stock pursuant to a tender or exchange offer made
by a person or related group of persons (other than the Company or a
person that directly or indirectly controls, is controlled by or is
under common control with the Company).
3.4 Bonuses. You will be entitled to such bonuses (if any) for
service rendered during your employment as the Company's
President may determine in his or her sole discretion and
such additional factors as the President deems appropriate,
specifically including your individual performance and the
Company's profitability.
3.5 Withholding. The Company will deduct and withhold, from the
compensation payable to you 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. Death. Upon your death during employment, the employment relationship
created pursuant to this Agreement will immediately terminate, and no
further compensation will become payable to you hereunder. In
connection with such termination, the Company will only be required to
pay you (or your estate) any unpaid compensation earned for services
rendered through the date of your death.
5. Restrictive Covenant. During your employment:
(i) You will devote your full working time and effort to the
performance of your duties as an executive officer of the
Company; and
(ii) You will not directly or indirectly, whether for your own account
or as an employee, consultant or advisor, provide services to any
business enterprise in the energy business or a related business
other than the Company, unless otherwise authorized by the
Company in writing.
However, you will have the right to perform such incidental
services as are necessary in connection with (a) your private
passive investments, (b) your charitable or community activities,
and (c) your participation in trade or professional
organizations, but only to the extent such incidental services do
not interfere with the performance of your services hereunder.
6. Confidentiality. You hereby acknowledge that the Company may, from time to
time during your employment, disclose to you confidential information
pertaining to the Company's business and affairs and client base, including
(without limitation) customer lists and accounts, other similar items
indicating the source of the Company's income, and information pertaining
to the salaries and performance levels of the Company's employees. You will
not, at any time during or after such employment, disclose to any third
party or directly or indirectly make use of any such confidential
information, including (without limitation) the names, addresses and
telephone numbers of the Company's customers, other than in connection
with, and in furtherance of, the Company's business and affairs. All
documents and data (whether written, printed or otherwise reproduced or
recorded) containing or relating to any such proprietary information of the
Company which come into your possession during your employment will be
returned by you to the Company immediately upon the termination of your
employment or upon any earlier request by the Company, and you will not
retain any copies, notes or excerpts thereof. Your obligations under this
Section 6 will continue in effect after termination of your employment with
the Company, whatever the reason or reasons for such termination, and the
Company will have the right to communicate with any of your future or
prospective employers concerning your continuing obligations under this
Section 6.
7. Ownership Rights. All materials, ideas, discoveries and inventions
pertaining to the Company's business, including (without limitation) all
patents and copyrights, patent applications, patent renewals and
extensions, and the names, addresses and telephone numbers of customers,
will belong solely to the Company. You will continue to be bound by all the
terms and provisions of your existing Proprietary Information and
Inventions Agreements with the Company or its subsidiaries or affiliated
companies, and nothing in this document will be deemed to modify or affect
your duties and obligations under those other agreements.
8. Indemnification. The indemnification provisions for Officers and Directors
under the Company's Bylaws will (to the maximum extent permitted by law) be
extended to you, during your employment and the period following your
termination irrespective of a Change in Control, with respect to any and
all matters, events or transactions occurring or effected during your
employment.
9. Miscellaneous. The provisions of this Agreement will be binding upon the
Company, its successors and assigns (including, without limitation, the
surviving entity or successor party resulting from a Change in Control) and
will be construed and interpreted under the laws of the State of
California. Each of the parties acknowledges and agrees that upon any
breach of this Agreement by you, the Company will not have an adequate
remedy at law, and will be entitled to specific performance and other
equitable relief. This Agreement incorporates the entire agreement between
you and the Company relating to the terms of your employment and supersedes
all prior agreements and understandings with respect thereto. This
Agreement may only be amended by written instrument signed by you and an
authorized officer of the Company. The provisions of this Agreement will be
deemed severable, and if any part of any provision is held illegal, void,
or invalid under applicable law, the remaining provisions of the Agreement
will not in any way be affected or impaired, but will remain binding in
accordance with their terms.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first written above.
KENETECH CORPORATION, a Delaware corporation
By___________________________
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
XXXXXXX XXXX
