Addendum No. 1 To Professional Engagement Agreement General Terms Between Calpine Corporation And PA Consulting Group, Inc.
EXHIBIT
10.3
Addendum
No. 1
To
Professional
Engagement Agreement General Terms
Between
Calpine
Corporation
And
PA
Consulting Group, Inc.
THIS
ADDENDUM NO. 1 (“Addendum No. 1”) is
made and entered into as of May 2, 2008 by and between Calpine Corporation
(“CALPINE”) and
PA Consulting Group, Inc. (“PROFESSIONAL”). This
Addendum No. 1 is entered into under and pursuant to the terms of that certain
Professional Engagement Agreement General Terms Between Calpine Corporation and
PA Consulting Group, Inc. dated as of May 2, 2008 (the “MSA”) by and between
CALPINE and PROFESSIONAL. Capitalized terms not defined in this
Addendum No. 1 have the meanings given to such terms in the MSA.
This
Addendum No. 1 is incorporated into the MSA as if fully set forth
therein. Except to the extent otherwise provided herein, this
Addendum No. 1 is subject to all the terms and provisions of the
MSA. Notwithstanding the foregoing or anything else to the contrary
in this Addendum No. 1 or the MSA, if any terms or conditions in this Addendum
No. 1 are inconsistent or in conflict with the MSA, the provisions of this
Addendum No. 1 shall control.
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1.
Purpose;
Statement of
Services;
Compensation
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This
Addendum No. 1 sets forth the terms and conditions on which PROFESSIONAL
will make Xxxx Xxxxxxxxx, a Member of PROFESSIONAL’S Management Group
(“SECONDEE”), available to serve as
the interim Chief Operating Officer (“COO”) of CALPINE (the “COO Services”). Compensation
will be provided to PROFESSIONAL for the COO Services in the fixed fee
amount of $220,000 per month plus expenses. This fee includes
the services of SECONDEE plus an additional PROFESSIONAL consultant to
support SECONDEE in this role. In addition, it may be necessary
to use up to two additional Full Time Equivalents ( FTEs) from
PROFESSIONAL’s staff to support SECONDEE. The two FTEs will be
billed on a time and material basis at rates provided
separately. The fees billed by these two FTEs will be included
in the COO Services budget. SECONDEE and PROFESSIONAL will
provide other services outside of the scope of this Addendum No. 1
(litigation support and other activities) at the hourly billing rate
pursuant to the applicable Statement of Work. PROFESSIONAL may
be entitled to a success fee at the discretion of the Chief Executive
Officer.
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2.
Responsibilities,
Power and
Authority of
SECONDEE
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SECONDEE
will report to the Chief Executive Officer. SECONDEE will have
duties and responsibilities customary for a COO, including management of
the business and affairs of, and direction and supervision of the
employees of, CALPINE under the
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direction
of CALPINE’s Board of Directors and CALPINE’s Chief Executive
Officer.
Notwithstanding
anything to the contrary in the MSA (including Section 1.3 thereof),
SECONDEE shall have the rights, power and authority, consistent with that
normally given to and exercised by chief operating officers in similar
corporations in CALPINE’s industry, including without limitation (i) to
control and direct the performance or activities of officers, employees
and agents of, (ii) to enter into contracts, agreements and/or
arrangements of and/or for the account of, and (iii) to incur obligations
and liabilities on behalf of and/or for the account of, CALPINE. SECONDEE
agrees to abide by all of CALPINE’s posted policies and procedures on the
CALPINE Today Intranet site or its successor Intranet site, including
adherence to CALPINE’s Code of Conduct.
SECONDEE
shall diligently and faithfully perform to the best of his abilities all
of the duties required of him as COO of CALPINE; provided, that notwithstanding anything to
the contrary in the MSA, PROFESSIONAL shall not be held
responsible for the failure of SECONDEE to so perform. Section 4 of the
MSA shall be inapplicable to this Addendum No. 1 and the COO
Services.
Notwithstanding
anything to the contrary in this Addendum No. 1, the parties intend that
SECONDEE shall at all times remain an employee of PROFESSIONAL and not of
CALPINE. Notwithstanding Section 5.2 of the MSA or anything
else in the MSA to the contrary, PROFESSIONAL and SECONDEE shall not be
obligated to indemnify CALPINE in the event that SECONDEE is found not to
be an independent contractor to CALPINE. Each of PROFESSIONAL,
CALPINE and SECONDEE shall be responsible for the taxes, penalties and/or
interest imposed on such party or for which such party is individually
responsible with respect to the services provided by SECONDEE through
PROFESSIONAL under the MSA and this Addendum No. 1, or as a result of any
re-characterization by any governmental entity, including the Internal
Revenue Service, of SECONDEE as other than an independent contractor to
CALPINE with respect to such services. None of the
aforementioned parties shall be responsible for any such taxes, penalties
and/or interest imposed on any other aforementioned party or for which any
other aforementioned party is individually responsible.
Notwithstanding
Section 5.3 of the MSA or anything else in the MSA to the contrary, it
shall be CALPINE that shall have sole discretion and control of the COO
Services and the manner in which they are performed. CALPINE may give such
orders and instructions to SECONDEE as CALPINE shall consider appropriate
in its sole discretion, and PROFESSIONAL shall have no power or authority
to give any orders or instructions to
SECONDEE
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with
respect to the COO Services. Section 5.3 of the MSA shall
be inapplicable to this Addendum No. 1 and the COO Services.
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3. Term and
Termination of
COO Services
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Notwithstanding
Section 2 of the MSA or anything else in the MSA to the contrary, this
Addendum No. 1 shall continue in effect for the period commencing on the
first date written above and extend on a month to month basis until
terminated by either party prior to the expiration of the
MSA. In addition to the termination rights of the parties under
Section 2.2 of the MSA, either party may terminate this Addendum No. 1 at
any time after the first date written above with thirty (30) days notice
to the other party. CALPINE shall pay PROFESSIONAL for all
authorized expenses and work performed under this Addendum No. 1 through
the date of termination.
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4. Release,
Waiver and
Indemnity
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Notwithstanding
Section 7.1 of the MSA or anything else in the MSA to the contrary, the
parties agree that Sections 7.1 shall not apply to this Addendum No. 1,
SECONDEE or the COO Services.
CALPINE
(the “Indemnifying Party”) agrees to indemnify, defend and hold harmless
PROFESSIONAL and its affiliates, and all of their employees, officers,
directors, shareholders, and joint ventures, including without limitation
SECONDEE (as an employee of PROFESSIONAL, individually or otherwise except
not with respect to SECONDEE individually only to the extent that SECONDEE
willfully and knowingly violates applicable law by his actions taken in
his capacity as COO)(collectively the “Indemnified Party”) from and
against any and all claims, demands, losses, damages, liabilities,
expenses, obligations, judgments, recoveries and deficiencies
(collectively “Losses”), in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative arising out of, related to, or in
connection with in any way (x) SECONDEE’s serving as COO of CALPINE and/or
providing the COO Services or (y) any other acts or omissions of SECONDEE
while serving as COO of CALPINE (collectively, the “Indemnified
Matters”). The Indemnifying Party’s obligation to indemnify
hereunder is predicated upon the Indemnified Party (a) giving prompt
written notice of any Loss, (b) giving the Indemnifying Party the
opportunity to assume sole control over the defense and settlement, if
applicable, of the Loss, and (c) providing, at the Indemnifying Party’s
sole expense, all reasonably requested and relevant information,
assistance and authority to enable the Indemnifying Party to perform its
obligations hereunder. The Indemnifying Party shall be permitted to settle
any Losses except that it shall not settle any Losses in any manner which
would impose any penalty, cost or limitation whatsoever on the Indemnified
Party or negatively impact the reputation of Indemnified Party without
Indemnified Party’s written consent, which shall not be unreasonably
withheld.
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CALPINE,
on behalf of itself and its shareholders, employees, officers, directors,
agents, affiliates, advisors, consultants, accountants and attorneys
(collectively, “Representatives”) and their respective assigns and
successors in interest, hereby releases and forever discharges the
Indemnified Parties and their assigns and successors from and against any
and all actions, causes of action, suits, countersuits, debts,
controversies, damages, claims, demands, rights to contribution or
indemnification, losses, liabilities, fees or expenses (including
attorneys’ and other experts’ fees and disbursements), in each case of
whatsoever kind or nature, whenever occurring, whether fixed or contingent
or accrued or unaccrued or xxxxxx or inchoate (collectively, “Claims”),
arising out of, related to, or in connection with the Indemnified
Matters. This release includes any Claims that may be
discovered in the future and regardless of whether any Losses therefrom
occur before or after the execution of this Addendum No. 1, and
includes claims for actual, consequential and punitive damages, and
whether arising in contract, tort, strict liability, under statute or
otherwise.
CALPINE
AGREES TO ASSUME THE RISK OF ANY AND ALL UNKNOWN, UNANTICIPATED OR
MISUNDERSTOOD CLAIMS (AS DEFINED IN THE PRECEDING PARAGRAPH) WHICH ARE
HEREBY RELEASED, AND HEREBY WAIVES AND RELEASES ALL RIGHTS AND BENEFITS
WHICH IT MIGHT OTHERWISE HAVE UNDER THE ANY APPLICABLE LAW WITH REGARD TO
THE RELEASE OF UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD
CLAIMS. CALPINE ALSO WAIVES ANY OTHER RIGHT WHICH IT MIGHT
OTHERWISE HAVE UNDER ANY OTHER LAW OF ANY APPLICABLE JURISDICTION WHICH
MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS OR SCOPE OF THIS
RELEASE.
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5. Insurance
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Section
6.1 of the MSA shall not apply to SECONDEE and the COO
Services. Notwithstanding Section 5.3 of the MSA or anything
else in the MSA to the contrary, CALPINE, and not PROFESSIONAL, shall have
sole responsibility for maintaining insurance covering SECONDEE in his
capacity as COO.
Without
limiting the scope of the foregoing, PROFESSIONAL shall cause SECONDEE to
be covered by (i) its directors’ and officers’ insurance and (ii) all
other insurance of PROFESSIONAL that may now or hereafter during the term
of this Addendum No. 1 provide coverage to officers and employees of
PROFESSIONAL (in each case, whether by rider or otherwise).
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6. Compliance
with Law and
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Notwithstanding
anything in Section 10.1 of the MSA or otherwise to the contrary, it shall
be CALPINE that shall be responsible for ensuring that
all
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CALPINE’s
Policies
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COO
Services, and SECONDEE’s actions taken in his capacity as COO, comply with
applicable law (except for purposes of this Section 6 only, SECONDEE shall
be individually responsible in cases where SECONDEE willfully and
knowingly violated applicable law by his actions taken in his capacity as
COO), including the responsibility for any and all disclosures and filings
required by rules and regulations promulgated by the SEC and CALPINE’S
policies and procedures (other than CALPINE’s posted policies and
procedures on the CALPINE Today Intranet site or its successor Intranet
site, including adherence to CALPINE’s Code of Conduct as is consistent
with Section 2 of this Addendum No. 1 (collectively “CALPINE’s
Policies”)). For the avoidance of doubt, PROFESSIONAL shall be
only responsible for making SECONDEE and any of its employees providing
the COO Services for CALPINE hereunder aware of the requirement under this
Addendum No. 1 to adhere to CALPINE’s Policies - as defined
above.
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7.
Survivability
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In
the event of expiration or termination of this Addendum No. 1 or the MSA
for any reason whatsoever, Sections 2 (last three paragraphs), 4, 5 and 6
of this Addendum No. 1 shall survive such expiration or termination and
remain in full force and effect in accordance with their
terms.
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IN
WITNESS WHEREOF, this Addendum No. 1 is executed effective as of the day and
year first above written.
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CALPINE
CORPORATION
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PA
CONSULTING GROUP, INC.
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By:
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/s/ R. P. May |
By:
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/s/ Xxxx Xxxxxxxxx | |||
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Name:
Xxxxxx Xxx
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Name:
Xxxx Xxxxxxxxx
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Title:
Chief Executive Officer
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Title:
Managing Partner
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Address:
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000
Xxxxx Xxx, Xxxxx 0000
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Address:
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0000
Xxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxx,
Xxxxx 00000
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Xxxxxx,
Xxxxxxxx 00000
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Accepted
and Agreed to:
| By: | /s/ Xxxx Xxxxxxxxx |
Name: Xxxx
Xxxxxxxxx
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