August 31, 2007
EXHIBIT
10.3
August
31, 2007
Xxxx
Xxxxx
[Address]
Re.
Employment Separation
Dear
Xxxx:
As
you are aware, your employment with Calpine will end effective August 31,
2007
as
a result of restructuring activities (“Qualifying Event”). This
letter agreement (the “Agreement”) confirms the terms of your separation from
employment with Calpine Corporation, a Delaware corporation or one or more
of
its subsidiaries (collectively, “Calpine”) and offers you the following benefits
in exchange for a release of all claims.
1. Separation
Date. Your employment with Calpine will be terminated effective
August 31, 2007 (the “Separation Date”).
2. Additional
Payment and Benefits. In exchange for the waiver and release
described in Paragraphs 7 and 8 below, Calpine agrees to provide you with
an
additional payment and benefits as described in the Calpine Corporation U.S.
Severance Program and the Severance Benefit Summary Sheet provided to you
with
this letter. By signing this Agreement, you also warrant that you understand
and
have read the terms of the Calpine Corporation U.S. Severance
Program. In addition to the payment and benefits described in the
attached Summary Sheet, you shall also be eligible to receive a one-time
payment
of a success fee at the sole discretion of the Chief Executive Officer of
Calpine as part of Calpine’s emergence incentive plan.
3. Participation
in Stock/401(k) and Life and Disability Insurance Plans. As you
will no longer be a Calpine employee after the Separation Date, you will
not
participate in Calpine’s Employee Stock Purchase Plan and life and disability
insurance plans after the Separation Date. Distribution options under
Calpine’s 401(k) plan will be pursuant to the plan rules, and you will be
provided with notice of such options by separate letter.
4. Return
of Company Property. You warrant that, by the Separation Date,
you will return to your manager or human resources representative all Calpine
property or data of any type, including computer and e-mail passwords, that
are
in your possession or control, without retaining any copies, notes or extracts
thereof.
5. References. You
should direct all requests for employment references to Xxxxx Xxxxxxxx in
Calpine’s Human Resources Department, xxxxxx@xxxxxxx.xxx, or her
successor. Human Resources will respond to all such inquiries by
stating that, as a matter of company policy, Calpine declines to provide
any
information regarding former employees other than the former employee’s dates of
employment and job title, and with written authorization from the employee,
the
former employee’s salary.
August
31, 2007
Page
2
6. Confidential
Information; Use of Confidential Information to Compete. By
signing below, you acknowledge that as a result of your employment with Calpine
you have had access to Confidential Information of Calpine (for the purposes
of
this Agreement, Confidential Information includes but is not limited to trade
secrets, inventions, marketing plans, product plans, business strategies,
financial information, forecasts, personnel information, customer lists,
customer information, and any other information which gives Calpine an
opportunity to obtain advantage over competitors who do not know or use it)
and
that you will hold all such Confidential Information in strictest confidence
and
will not disclose to any person or entity or make use, directly or indirectly,
of such Confidential Information. You confirm that you will deliver
to your manager or human resources representative, within ten (10) days of
the
Separation Date, all diskettes, documents and data of any nature pertaining
to
any such Confidential Information and that you have not taken or retained
any
such diskettes, documents or data or any reproductions. Nor shall you
directly or indirectly use Confidential Information of Calpine to compete
with
Calpine, or disclose Confidential Information to a competitor of Calpine
or to
any other person or entity.
7. Release
of Claims. You acknowledge that you have no claims against
Calpine based on your employment with Calpine or the separation of that
employment, except for claims asserted as of February 1, 2006 in Xxxxxx X.
Xxxxxx, Xx., et al. v. Calpine Corporation, et al., Case No. 1-04-CV-032103
(CA
Superior Court, Santa Xxxxx County), if you are a class member identified
in
that lawsuit, and except for other claims that are specifically excluded
from
this release by Paragraph 8, below. By signing below, you release
Calpine and forever discharge Calpine from all claims, demands, causes of
action, damages and liabilities, known or unknown, that you have ever had,
now
have or may claim to have had relating to or arising from your employment
with
or separation from Calpine, except for claims that are specifically excluded
from this release by Paragraph 8, below.
You
expressly waive the benefits of Section 1542 of the Civil Code of the State
of
California (and under other state and federal provisions of similar effect)
which provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR.
8. Waiver
of Claims Including Employment-Related Claims. You understand that the
release you are providing releases and waives any and all claims you may
have
against Calpine and its owners, agents, officers, shareholders, employees,
directors, attorneys, subscribers, subsidiaries, affiliates, insurers,
successors and assigns, whether known or not known, including, without
limitation, claims under any employment laws,
August
31, 2007
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including,
but not limited to, claims of unlawful discharge, breach of contract, breach
of
the covenant of good faith and fair dealing, retaliation, harassment, fraud,
violation of public policy, defamation, physical injury, emotional distress,
claims for compensation or benefits arising out of your employment or your
separation of employment, claims under Title VII of the 1964 Civil Rights
Act,
as amended, the California Fair Employment and Housing Act, and any other
laws
and/or regulations relating to employment or employment discrimination,
including, without limitation, claims based on age or under the Age
Discrimination in Employment Act or Older Workers Benefit Protection Act,
provided, that this waiver and release does not extend to: claims for breach
of
this agreement; claims for legally required indemnification; claims for
unemployment compensation benefits, workers’ compensation benefits, or state
and/or long term disability benefits; claims asserted in Calpine’s Chapter 11
bankruptcy proceeding for unpaid accrued vacation pay, unpaid deferred
compensation, or indemnity, contribution or reimbursement; or claims for
acts
occurring after the Separation Date. This waiver and release also
does not apply to claims asserted as of February 1, 2006 in Xxxxxx X. Xxxxxx,
Xx., et al., v. Calpine Corporation, et al., Case No. 1-04-CV-032103 (CA
Superior Court, Santa Xxxxx County).
9. Covenant
Not to Prosecute. You agree never, individually or with any
person or in any way, to commence, prosecute or cause or permit to be commenced
or prosecuted against Calpine, any legal action or other proceeding based
upon
any claim, demand, cause of action, damage or liability which is released
by
this Agreement, except as required by law. If such action has been
filed on your behalf, you agree to immediately cause the dismissal of such
action with prejudice and without any further right of appeal.
10. Review
of Severance Agreement and Timing of Payment. You acknowledge your
understanding that you may take up to forty-five (45) days
to consider this Agreement and, by signing below, affirm that you were advised
to consult with an attorney before signing this Agreement. You
further acknowledge that you understand you may revoke this Agreement within
seven (7) days of signing it, by faxing a written revocation signed by you
to
Xxxxx Xxxxxxxx, fax number 000-000-0000, so that your fax is received by
Xx.
Xxxxxxxx by the end of that seven (7) day period. You further agree
that the severance pay to be provided to you, identified in paragraph 2 above,
in exchange for your agreement will commence one to two pay periods after
the
end of that seven (7) day revocation period and only after Calpine receives
this
original signed Agreement, and that this Agreement will not become effective
or
enforceable until the revocation period has expired.
11. Legal
and Equitable Remedies. Both you and Calpine have the right to
enforce this Agreement and its provisions by injunction, specific performance
or
other relief without prejudice to any other rights or remedies you may have
at
law or in equity for breach of this Agreement. You understand and have read
the
terms of the Calpine Corporation U.S. Severance Program (“the Program”) and
understand that under the terms
August
31, 2007
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4
of
the Program, with respect to claims relating in any way to benefits provided
under the Program, you may be required to follow the claims procedures
identified in the Program.
12. Attorneys’
Fees. If any legal action is brought to enforce the terms of this
Agreement, the prevailing party will be entitled to recover its reasonable
attorneys’ fees, costs, and expenses from the other party, in addition to any
other relief to which such prevailing party may be entitled.
13. Assignment,
Successors and Assigns. Calpine and you understand that this
Agreement will benefit and be binding upon you and your heirs, successors,
permitted assigns, and agents. This Agreement will not benefit any
other person or entity except as specifically described in this
Agreement.
14. Confidentiality. You
agree to keep the contents, terms and conditions of this Agreement
confidential. You may disclose this information to your spouse,
immediate family, accountants, or attorneys, provided that they first agree
not
to disclose any information concerning the contents, terms and conditions
of
this Agreement to anyone. You also may disclose the contents, terms
and conditions of this Agreement to the IRS or other taxing authorities or
as
required by subpoena or court order. Any breach of this confidentiality
provision, or of any other obligation by you set forth in this Agreement,
will
be deemed a material breach of this Agreement.
15. Non-Solicitation
and Non-Disparagement. For a two (2) year period after the date
of this letter, you agree not to directly or indirectly solicit any employee
of
Calpine to perform services for another business entity, and not to make
any
disparaging or derogatory statements about Calpine or its directors, officers,
agents or employees.
16. No
Admission of Liability. This Agreement is not and may not be
contended by you to be an admission or evidence of any wrongdoing or liability
on Calpine’s part. This Agreement will be afforded the maximum
protection allowable under California Evidence Code Section 1152 and/or other
state or Federal provisions of similar effect.
17. Entire
Agreement. This Agreement constitutes the entire agreement
between you and Calpine with respect to the subject matter of this
Agreement. It supersedes all prior negotiations and agreements,
whether written or oral, relating to this subject matter except those provisions
of prior written agreements that expressly extend beyond the term of your
employment. You acknowledge that neither Calpine nor its agents have
made any promise or representation either express or implied, written or
oral,
which is not contained in this Agreement for the purpose of inducing you
to sign
this Agreement, and you acknowledge that you have signed this Agreement relying
only on the promises and representations stated herein.
August
31, 2007
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18. Modification. This
Agreement may not be altered, amended, or otherwise changed except by another
written agreement that specifically refers to this Agreement, signed by you
and
by Calpine or its authorized representative.
19. Governing
Law. This Agreement is governed by and will be interpreted
according to the laws of the State of California. If any term of this
Agreement is deemed invalid or unenforceable, the remainder of this Agreement
will remain in full force and effect.
20. Your
Understanding. By signing below, you acknowledge that you have
read this Agreement and fully understand and agree to it.
PLEASE
READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
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CALPINE
CORPORATION
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Dated:
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August
21
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, 2007
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Xxxxx
X. Xxxxxxxx
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Vice
President of Human Resources
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[CONTINUED
ON NEXT PAGE]
August
31, 2007
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I
have read the above Agreement, have had an opportunity to obtain legal advice,
and by signing below voluntarily accept and agree to its terms including
the
release of all claims, known and unknown.
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EMPLOYEE
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Dated:
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August 21
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,
2007
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By:
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/s/
Xxxx Xxxxx
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Employee’s
Signature
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Xxxx
Xxxxx
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Print
Name
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Print
Address
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Print
Social Security Number
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Please
indicate by checking one of the boxes below, whether you choose to receive
outplacement services or Calpine subsidized benefit continuation, as described
in the Calpine Corporation U.S. Severance Program.
Outplacement
Services [ ]
Subsidized
Benefit Continuation [x]
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*Please
note: regardless of your decision above to
elect either Outplacement Services or Subsidized Health Benefits
continuation (i.e., paid for by Calpine), if you want to
continue your health benefits under COBRA you MUST
complete and return the separate
COBRA
enrollment form which will be mailed to your home by United
Healthcare Direct Bill 2 – 3 weeks after your termination
date.
Calpine
is not responsible for interruptions in health care coverage
that result
from your failure to return the COBRA election form to
UnitedHealthcare.
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August
31, 2007
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Affected
Employees of Calpine Corporation
You
and the employees listed below are eligible to receive severance benefits
from
Calpine Corporation pursuant to the Calpine Corporation U.S. Severance Program
(“the Program”). To receive benefits, you must sign the Release you
have been given and return it to Calpine Corporation, Xxxxx Xxxxxxxx, VP
HR , 00
Xxxx Xxx Xxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 by the end of the forty-five
(45)
day period after you receive this Agreement.
The
listing below shows the number of employees eligible and ineligible for benefits
by job title. Eligible employees are those who were notified February
01, 2006 through August 31, 2007 pursuant to the Calpine Corporation U.S.
Severance Program. Ineligible employees are not subject to lay-off
under the Program.
The
groups of individuals eligible for benefits under this Program consist of
certain employees in various job classifications listed below. The criteria
used
by Calpine for determining eligibility for the reduction in workforce or
restructuring activities (“Qualifying Event”) are Calpine’s current and
anticipated business needs, and/or the skills and job performance of employees
in the affected business units.
Please
note that this information is subject to change and may be affected by future
employment decisions including those decisions contemplated by the
Program. If you have any questions about this information, contact
your Human Resources Representative.
See
attached list of Eligible Employees and Ineligible
Employees
