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EXHIBIT 10(h)
CONFIDENTIAL AGREEMENT AND GENERAL RELEASE
THIS CONFIDENTIAL AGREEMENT AND GENERAL RELEASE (this "Agreement") is
entered into by and between Xxxxx X. Xxxx ("Xxxx") and KN Energy, Inc. ("KN"), a
Kansas corporation headquartered in Lakewood, Colorado, because of the mutual
agreement of KN and Hall that Hall to cease employment with KN.
WHEREAS, the parties wish to settle and discharge all potential claims
and disputes between them, known or unknown;
NOW, THEREFORE, in consideration of the foregoing premises and the
following promises, which the parties agree constitute good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
1. EFFECT OF THIS AGREEMENT. This Agreement shall supersede in all
respects all letters, agreements or promises including but not limited to the
Change of Control Severance Agreement dated as of October 19, 1996 and amended
October 20, 1997 between KN and Hall, and once effective shall be the only
agreement between KN and Hall relating to Hall's employment by KN and/or the
cessation of that employment.
2. DEFINITIONS.
(a) Confidential Information. The term Confidential Information shall
include all non-public or proprietary information relating to (i) KN's
customers, prospective customers, providers, suppliers, and other business
affiliates; (ii) KN's policies, practices, operating information, financial
information, business plans, and market approaches; and (iii) other information,
techniques or approaches used by KN and not generally known in KN's industry. KN
believes that some or all of this information constitutes trade secrets;
however, the "Confidential Information" covered by this Agreement need not
satisfy the legal definition or requirements of a "trade secret" to be protected
from disclosure thereunder. Information shall not be Confidential if it is in
the public domain at the time this Agreement is entered into or is thereafter
communicated free of any obligation of confidence by KN to any other person or
entity.
(b) Effective Date of Termination of Active Employment. Hall's last day
of active employment was July 8, 1999.
(c) Effective Date of This Agreement. The "Effective Date of This
Agreement" shall be the day of Hall's written acceptance of this Agreement
excluding the Age Discrimination Provisions.
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(d) Age Discrimination Provisions and Effective Date of Age
Discrimination Provisions. The "Effective Date of Age Discrimination Provisions"
shall be the eighth day following Hall's written acceptance of the Age
Discrimination Provisions without revocation. Age Discrimination Provisions
include the age discrimination amount, age discrimination release, and Older
Worker Benefit Protection Act acknowledgement.
(e) Effective Date of Termination of Employment. The effective date of
termination of Hall's employment was September 10, 1999 except as set forth in
paragraphs 3(c-e) of this Agreement. KN's employment records will state Hall
resigned.
(f) KN. "KN" means collectively KN Energy, Inc. a Kansas corporation,
and its divisions and affiliates or the successors to any such entities. For
purposes of this Agreement, the term "affiliates" shall have the same definition
as the term "affiliated group" in Section 1504(a) of the Internal Revenue Code
of 1986, as amended from time to time.
3. KN'S PROMISES. In consideration of Hall's promises recited herein:
(a) Severance Amount. KN agrees to pay Hall or his heirs a gross amount
of $1,468,661.41 (One Million Four Hundred Sixty-Eight Thousand Six Hundred
Sixty-One Dollars and Forty-One Cents). Payments will be made in fifty-eight
equal installments on regular KN paydays beginning with the first pay period
after the Effective Date of this Agreement.
(b) Age Discrimination Amount. KN agrees to pay Hall or his heirs a
gross amount equal to $500,000 (Five Hundred Thousand Dollars). Payments will
begin on regular KN paydays beginning with the first pay period after the
payments required by paragraph 3(a) above and will be made in twenty equal
installments. Hall agrees that he is not otherwise entitled to this money under
any agreement with KN or policy or practice of KN.
(c) Health Insurance Benefits, Bridge to Early Retirement and Unpaid
Leave.
(i) KN will continue Hall's present medical, dental, life
insurance, and accidental death and dismemberment at the same coverage level and
rate as is available to current employees of KN or its successor through
November 8, 2000 when Hall will be eligible for COBRA, unless a triggering event
has previously occurred, or retiree medical benefits. The coverage shall be for
Hall and his spouse and dependent child. Hall will be considered to be on an
unpaid leave of absence through November 8, 2000, for the purpose of bridging
him to early retirement, which includes service credit under KN's qualified
retirement plan and Nonqualified Retirement Income Restoration Plan, and the
ability to file an Election Form under the Directors and Executives Deferred
Compensation Plan but not to make any additional contributions to that Plan,
with the understanding and agreement that he is being reinstated to KN's
personnel systems solely for purposes of exercising rights to the benefits
described above, including those benefits accruing to a qualified retiree, and
is not considered a KN employee for any other purpose and may not represent
himself to be an employee of KN or in any other way associated with KN during
such leave, and with the
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further understanding that he shall not be entitled to any other benefits other
than those described in this paragraph.
(ii) KN will also pay to a health care insurer designated by
Hall an amount not to exceed Fifty Thousand Dollars. This payment shall not be
required until after Hall ceases to be eligible for KN's group medical program.
(d) Profit Sharing, Retirement Plans, 401(k), Deferred Compensation and
Employee Stock Purchase Program (ESPP). Hall will not be eligible to continue to
participate in the KN savings, deferred compensation except as provided in
paragraph 3(c)(i) above, stock purchase, or retirement plans except as provided
in paragraph 3(c)(i) above after August 29, 1999. KN acknowledges Hall is
entitled to payment of Seventeen Thousand Three Hundred Seven Dollars and Fifty
Four Cents ($17,307.54) which he has deposited in the Employee Stock Purchase
Program subject to the terms of the ESPP. This Agreement does not affect any
rights under these Plans.
If Hall, on or before October 15, 1999, files an Election Form which
changes his December 10, 1998 Election Form under the Directors and Executives
Deferred Compensation Plan for the Plan year beginning January 1, 2000, KN will
use its best efforts to secure approval from the Committee pursuant to Article
5.2 of the Plan.
(e) Restricted Stock and Stock Options.
(i) Restrictions on Restricted Stock awarded to Hall during
his employment with KN including, if necessary, stock placed in a Directors and
Executives Deferred Compensation Plan shall lapse on the fifth day after the
Effective Date of his Agreement. All rights of such Restricted Stock shall
immediately be awarded to Hall. Hall shall be solely responsible for any taxes
or other expenses resulting from this acceleration, and hereby indemnifies and
holds KN harmless for any such taxes or expenses.
(ii) All stock options awarded to Hall during his employment
with KN which are not vested as of August 29, 1999 shall terminate. Hall shall
have three months from August 29, 1999 to exercise any options vested as of that
date. To the extent Hall does not exercise any of such vested stock options
within the three-month period, such options shall be forfeited.
(f) Non-Disparagement. For a period of two years from the Effective
Date of this Agreement, KN agrees that no one from its Board of Directors or its
executive officer group shall disparage Hall, but KN expressly undertakes no
obligation and refuses to be responsible for actions of employees at any level
below its executive officer group that might be construed to be disparagement of
Hall.
(g) Director and Officer Insurance. KN will provide director and
officer liability coverage to Hall on the same terms as it provides to other
director or officers who served during 1999. Hall shall also have the same
rights to indemnification and defense as other
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directors or officers who served during 1999. Hall's coverage will terminate
after the same period used to determine termination of coverage for other former
directors and officers.
(h) Financial Planning Expenses. KN will pay an invoice it received in
September 1999 in the amount of $7,500 (Seven Thousand Five Hundred Dollars) for
financial planning advice. KN will pay an additional $3,500 (Three Thousand Five
Hundred Dollars) for financial planning advice provided invoices are received
prior to January 31, 2000. Invoices should be submitted to Xxxxx X. Street, Sr.
V.P. Human Resources and Administration, Xxxxxx-Xxxxxx Energy Partners, L.P.,
0000 XxXxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
(i) Office and Secretarial Assistance. KN will pay a provider selected
by Hall a monthly amount not to exceed $1,200 (One Thousand Two Hundred Dollars)
commencing the first month after the Effective Date of This Agreement and
continuing to November 8, 2000.
(j) Vacation Pay. Within five business days after the Effective Date of
This Agreement, KN will pay Hall for his accrued vacation (192 hours).
(k) Release. KN, its successors and assigns, release Hall from all
claims, demands, and actions of any nature, known or unknown which arose on or
prior to the Effective Date of This Agreement provided the representation by
Hall in paragraph 4(h) below is true. KN has no present knowledge that Hall's
representation is not true.
4. HALL'S PROMISES. In consideration of KN's promises recited herein:
(a) Confidential Information. Hall shall not, for a period of two years
from the Effective Date of This Agreement, directly or indirectly, (i) use or
apply any Confidential Information, alone or with any other person or entity; or
(ii) disclose or provide any Confidential Information to any person or entity
not authorized by KN to receive such Confidential Information.
(b) Warranty of Non-Removal of Confidential Information or Trade Secret
Material and Information. Hall specifically warrants that, other than copies of
information used in connection with his performance of his duties as CEO during
his active employment with KN where KN has originals, he has not removed and
will not remove from KN's premises, either directly or indirectly, any drawings,
writings, prints, computer disks, documents or anything containing, embodying or
disclosing any Confidential Information or proprietary information or any of
KN's trade secrets. Any future removals require KN's express written permission
by a member of KN's executive management. For purposes of this Agreement, the
term trade secrets means any materials within the meaning of the Uniform Trade
Secrets Act, C.R.S. Section 7-74-101 et seq.
(c) Release. Hall for himself and his representatives, heirs, and
assigns, hereby releases and discharges KN, any parent, sister or subsidiary
company, and any present or former shareholders, officers, directors, employees,
agents, representatives, legal
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representatives, accountants, successors, and assigns, Xxxxxx-Xxxxxx Inc., and
any parent, sister or subsidiary company, and any present or former
shareholders, officers, directors, employees, agents, representatives, legal
representatives, accountants, successors and assigns, Xxxxxxx Xxxxxx, and
Xxxxxxx Xxxxxx, from all claims, demands, and actions of any nature, known or
unknown, and specifically, but not limited to, those in any manner arising out
of or involving any aspect of his employment with KN and his termination of
employment, and including any rights or claims under the Colorado
Anti-Discrimination Act; the Civil Rights Act of 1964, as amended, 42 U.S.C.,
Section 2000e, et seq.; the Vocational Rehabilitation Act, 29 U.S.C. Section 701
et seq.; the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq.;
Executive Order 11246; the Civil Rights Act of 1871, 42 U.S.C. Section 1981; the
National Labor Relations Act, as amended, 29 U.S.C. Section 141 et seq.; the
Worker Adjustment and Retraining Notification Act, 29 U.S.C. Sections 2101-2109;
and any and all other municipal, state, and/or federal statutory, executive
order, or constitutional provisions pertaining to an employment relationship;
provided, however, that this release and waiver shall not apply to any rights
which, by law, may not be waived or to rights and claims that arise after the
date of his execution of this Agreement. This release and waiver also
specifically includes, but is not limited to, any claims in the nature of tort
or contract claims, including specifically but not limited to any claim of
wrongful discharge, intentional or negligent infliction of emotional distress,
defamation, or other such claims in any manner arising out of or involving any
aspect of Hall's employment with KN and termination of his employment. This
release includes any and all claims concerning attorney fees, costs, and any and
all other expenses related to the claims released herein. This release does not
include claims for breach of this Agreement, indemnification, coverage or
defense under any applicable directors and officers insurance policy or vested
employee benefits.
(d) Age Discrimination Release. Hall releases KN and all persons
released in paragraph 4(c) above from any claims under the federal Age
Discrimination in Employment Act, 29 U.S.C. Section 621, et seq.
(e) Covenant Not to Xxx. Xxxx warrants that he has not commenced and
agrees not to commence any proceeding against KN or any person released in
paragraph 4(c) above, whether administrative or judicial, asserting any claim
arising out of his employment or the termination thereof, except to specifically
enforce this Agreement.
(f) Non-Disparagement Agreement. For a period of two years from the
Effective Date of this Agreement, Hall specifically agrees that he will not in
any way disparage any person released in paragraph 4(c) above, KN's consultants,
agents, or KN's business operations or decisions.
(g) Taxes Owed by Hall. Hall owes KN Thirty Seven Thousand Four Hundred
Thirty Two Dollars and Fifty Cents ($37,432.50) for taxes paid by KN on Hall's
behalf related to lapses of restrictions on restricted stock awards which
occurred on February 10, 1999 and March 4, 1999. Hall will reimburse KN for all
taxes owed ten days after the Effective Date of This Agreement.
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(h) Representation. Hall represents that he knows of no representation
or promise made by him on behalf of KN which is not known to either a director
or senior manager or a person who held such a position at the time Hall made the
representation or promise known to that person. Hall has made no representations
or promises on behalf of KN since July 8, 1999.
5. OLDER WORKER BENEFIT PROTECTION ACT ACKNOWLEDGEMENT. Hall knowingly
and voluntarily waives any and all claims under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. Section 621, et seq., and agrees as follows:
(a) Hall's termination is an individual termination and not part of "an
exit incentive or other employment termination program offered to a group or
class of employees," as that phrase is used at 29 U.S.C. Section 626(f)(1)(H).
(b) This waiver is part of an Agreement that is written in a manner
calculated to be understood by Hall.
(c) This waiver specifically refers to rights and claims arising under
the ADEA.
(d) Hall does not waive any claims that may arise after the date this
Agreement is executed.
(e) Hall waives ADEA rights or claims only in exchange for
consideration in addition to anything of value to which he is already entitled.
(f) Hall has consulted with an attorney before executing this
Agreement.
(g) Hall shall have 21 days from the date he receives this Agreement
within which to consider it insofar as it relates to claims under the ADEA,
although he may accept this Agreement at any time within those 21 days. The
parties agree that changes to this Agreement whether material or immaterial do
not restart the running of the 21 day period.
(h) Hall shall have seven days from the date he accepts and signs this
Agreement with respect to age discrimination claims within which to revoke his
acceptance of this Agreement insofar as it relates to waiver of claims under the
ADEA. Those provisions are contained in paragraphs 2(d), 3(b), 4(d) and 5. To be
effective, such revocation must be made in writing to Sr. Vice President - Human
Resources and Administration, received by the close of business on the seventh
day following acceptance. The effective date of the Age Discrimination
Provisions of this Agreement shall be the eighth day after Hall's written
acceptance of the Age Discrimination Provisions.
6. COOPERATION IN LITIGATION OR REGULATORY PROCEEDINGS. Hall will
cooperate with KN or its successor in the prosecution or defense of any matters
where KN or its successor believes Hall's participation might be useful by
answering fully all questions about his work at KN. If Hall is contacted by any
person representing interests adverse to KN or by any person employed by or
acting on behalf of any regulatory body, he will immediately
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notify the General Counsel of KN or its successor before speaking with any such
person. Hall has had access to information subject to attorney-client privilege
and/or work product protection. Hall will not divulge any such information
without the consent of KN or its successor.
7. NON-DISCLOSURE OF TERMS OF THIS AGREEMENT. KN and Hall agree not to
divulge, disclose or publicize in any manner to any third party, including
current or former employees of KN, the terms and conditions of this Agreement,
except (1) insofar as is necessary to enforce the Agreement or to respond to an
order of a court or administrative agency for disclosure, (2) compliance with
reporting obligations composed by regulatory authorities including but not
limited to the Securities and Exchange Commission, and (3) that such terms may
be disclosed to Hall's immediate family, tax, legal or financial advisors, if
any, on condition that any such person to whom the terms or conditions of this
Agreement are disclosed shall be instructed not to disclose the terms or
conditions to anyone else. Should a third person inquire as to the status or
resolution of any dispute between the parties, the parties may say only that the
parties have resolved all differences. For purposes of this paragraph
Xxxxxx-Xxxxxx, Inc., Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxx are not third parties.
8. USE IN OTHER PROCEEDINGS. Each party agrees that this Agreement
shall not be tendered or admissible as evidence in any proceeding by either
party for any purpose, except, (i) that the Agreement shall be admissible as
evidence in a proceeding involving the parties in which an alleged breach of the
Agreement or the validity of any term of the Agreement is at issue, or (ii) that
the Agreement may be used by either party provided the party gives written
notice to the other party at least twenty days in advance of any such use and
does not oppose the party's standing to file objections to such use.
9. REMEDIES.
(a) In addition to any other remedies that may be available to KN or
Hall, the parties, agree that, in the event a party breaches any of the promises
set forth in this Agreement at paragraphs 3(f), 4(a), 4(b), or 4(f) and such
breach is proven in a proceeding provided for in this Agreement, such party
shall be liable for damages in the amount of $100,000 for each breach. The
parties specifically agree that such damages are liquidated damages and not a
penalty. Such damages shall not be available until notice of a breach of this
Agreement is provided to the alleged breaching party in writing and the party is
given a reasonable opportunity to cure such breach. The parties also agree that
continuing harm would result to the affected party should the breaching party
not cease and desist all conduct in violation of the Agreement, and that the
affected party would be entitled to an injunction prohibiting such continuing
conduct in addition to any liquidated damages awarded.
(b) The rights and obligations of this section shall survive any
expiration or termination of this Agreement.
10. NO ADMISSION OF LIABILITY. The entry into this Agreement by KN is
not and shall not be construed to be an admission of any act, practice or policy
by KN or any of its present or former officers, directors, agents,
representatives or employees, in violation of any
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statute, common law duty, constitution, or administrative rule or regulation,
any such liability being expressly denied.
11. PLACE FOR RECEIPT OF THE MONTHLY PAYMENTS AND OTHER NOTICES.
Payment of the Monthly Payments, if made by mail, and any other written notice,
shall be made to: 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
12. ARBITRATION. All disputes arising between the parties in connection
with this Agreement except claims for injunctive relief to enforce paragraphs
3(f), 4(a), (b), and (f), 6, or 7, or any underlying claim purportedly released
pursuant to this Agreement shall be resolved by final and binding arbitration
under the Colorado Uniform Arbitration Act by a single arbitrator. The
arbitrator shall be mutually selected by the parties to this Agreement and shall
have the following qualifications: (a) such person shall have no previous
business or personal relationship with either of the parties, (b) such person
shall reside in the greater metropolitan area of Denver, Colorado, (c) such
person shall be a lawyer with at least 15 years of experience in commercial
litigation which shall include (but not be limited to) experience in the areas
of employment, labor, human resources or similar matters involving senior
management, or (d) such person shall be a retired judge with at least 15 years
of experience in civil matters within the State of Colorado. If the parties
cannot reasonably agree on an arbitrator within 30 calendar days of the receipt
of a notice of dispute by one party to the other, such arbitrator shall be
chosen under the then prevailing commercial rules of the American Arbitration
Association, as modified by this Agreement. The arbitrator shall award the
prevailing party reasonable attorneys fees, the costs of the arbitration, and
reasonable expert witness fees.
13. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of Colorado.
14. ACKNOWLEDGMENT. Hall hereby certifies that he has read this
Agreement and understands its terms and significance, and that he executes it
voluntarily and with full knowledge of its effect.
15. SEVERABILITY. If any provision of this Agreement is found to be
unenforceable, the remaining provisions shall remain in full force and effect.
16. SUCCESSORS AND ASSIGNMENT. This Agreement is binding on and inures
to the benefit of the heirs, personal representatives, successors and assigns of
both parties. This Agreement may not be assigned by Hall without the express
written consent of KN.
17. PARAGRAPH HEADINGS. The headings or this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any portion hereof.
18. ENTIRE AGREEMENT. This document constitutes the entire agreement of
the parties and may not be expanded or amended except by express written
agreement executed by both.
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Accepted this 4th day of October, 1999.
/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX
KN ENERGY, INC.
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Title: Chairman and CEO
Witness: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Assistant General Counsel
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Acceptance of Age Discrimination Provisions
/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX
Date: October 4, 1999
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