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.
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.
August
31, 2007
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2
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.
August
31, 2007
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3
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).
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.
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.
August
31, 2007
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5
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.
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]
*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