CONSULTING AGREEMENT
EXHIBIT
10.3.2
This
Consulting Agreement (“Agreement”) is entered into as of May 30, 2008, by and
between Calpine Corporation (“Calpine”) and Xxxxxxx Xxxxx (“Consultant”), with
reference to the following:
WHEREAS,
Consultant has substantial knowledge regarding Calpine’s accounting and
financial operations arising from Consultant’s former employment by Calpine, and
has substantial accounting and financial expertise;
WHEREAS,
Calpine and Consultant have agreed that Consultant will provide consulting
services to Calpine pursuant to the terms and conditions of this Agreement;
and
WHEREAS,
in connection with the consulting services contemplated under this Agreement,
Consultant acknowledges that he will have access to Calpine’s Confidential
Information (as defined below).
NOW,
THEREFORE, in consideration of the covenants and agreements set forth herein,
and subject to the approval of the Compensation Committee of Calpine’s Board of
Directors, the parties agree as follows:
1.
Term. Calpine
hereby engages Consultant and Consultant accepts such engagement for a term
commencing on the date set forth above and continuing for a maximum period of
eighteen (18) months (the “Term”) unless sooner terminated by Calpine as
provided in this Agreement. Any termination of this Agreement is
effective on two weeks notice as set forth in Section 9 hereof. This
Agreement may be extended by written agreement of both parties.
2.
Services to Be
Rendered.
2.1.
Consultant
shall provide consulting services to Calpine as requested by Calpine, to assist
Calpine with any issues relating to the transition of a new Calpine Controller,
the transition of a new Calpine Chief Financial Officer, general accounting and
securities law issues, financial closings and related Securities and Exchange
Commission (“SEC”) filings, and any ongoing or new inquiries from any
governmental, regulatory or similar agency or entity (collectively, the
“Services”). Consultant shall at all times faithfully, industriously
and to the best of his ability, experience, and talent, perform to the
satisfaction of Calpine all of the requested Services. Consultant
acknowledges and agrees that he shall at all times control the manner and means
by which the Services are provided. Calpine shall make space
available in its offices for the Consultant’s reasonable use in connection with
the Services provided under this Agreement.
2.2.
During
the first nine (9) months of the Term, Consultant shall be available, as
requested by Calpine, to work a normal, full workweek in Houston, Texas or at
any other location reasonably chosen by Calpine. During the final
nine (9) months of the Term, Consultant is expected to fully cooperate with
Calpine and be available as needed periodically, but is not required to work
full-time for Calpine unless he is available to do so. Consultant’s
primary work location is expected to be Calpine’s Houston, Texas offices located
at 000 Xxxxx Xxxxxx, but
Consultant
shall work at other locations as reasonably required by Calpine. If
in California, for weeks that Calpine requires Consultant to work full-time at
Calpine’s Houston, Texas offices, Consultant shall fly to Houston and arrive at
Calpine’s Houston offices as early as possible on Monday morning Texas time,
work the balance of that workday, work a full workday Tuesday through Thursday,
work Friday morning and depart for the airport early Friday afternoon Texas
time. If in Houston, Consultant shall work a normal full
workweek.
3.
Termination. If
Consultant fails to make himself available or perform the Services as set forth
in Section 2 above, Calpine may terminate this Agreement with two weeks’ written
notice to Consultant and Consultant shall have no right to receive any
consulting fees thereafter.
4.
Compensation. Calpine
shall pay to Consultant a consulting fee of Thirty Three Thousand Three Hundred
and Thirty Three Dollars ($33,333.00) per calendar month of the Term (the
“Fee”), with the first monthly payment made as soon as administratively possible
after the first of the month following the termination of Consultant’s
employment by Calpine, and with monthly payments thereafter to be made at or
around the first of each subsequent month.
5.
Reimbursement of
Expenses. Calpine shall reimburse Consultant for his actual,
reasonable business expenses incurred in connection with his performance of the
Services, after Consultant submits appropriate documentation of such
expenses. These expenses may include reasonable travel between
Houston and California, and reasonable expenses for lodging and meals in
Houston, consistent with the Calpine travel expense policy.
6.
Relationship of the Parties;
Withholding and Other Deductions. Consultant acknowledges and
agrees that the relationship between Calpine and Consultant intended to be
created by this Agreement is that of client and independent contractor, and
nothing herein contained shall be construed as creating a relationship of
employer and employee or principal and agent between them. Consultant
shall neither act nor make any representation that he is authorized to act as an
employee, agent or officer of Calpine. Consultant acknowledges and
agrees that he is responsible for paying all taxes related to the compensation
payable to him hereunder and that Calpine will not withhold any monies for
payments which Consultant is required to make pursuant to any applicable law,
governmental regulation, rule or order. Consultant agrees to
indemnify and hold harmless Calpine from and against any and all claims,
judgments, losses, damages (including special and consequential damages), costs
and expenses, including actual attorneys’ fees and costs, imposed upon or
incurred by Calpine resulting or arising out of any failure by Consultant to pay
any such taxes when due.
7.
Confidential
Information.
7.1. Consultant
acknowledges and agrees that this Agreement creates a relationship of confidence
and trust on the part of Consultant for the benefit of Calpine, and that during
the term of this Agreement, Consultant will have access to, and may create or
acquire, certain Confidential Information (as hereinafter defined) of
Calpine. During the term of this Agreement and at all times
thereafter, Consultant shall preserve as confidential all Confidential
Information that he may create, acquire or have access to during the term of
this Agreement or during his previous employment by Calpine. Without
Calpine’s prior written consent, which
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may be
given or withheld in Calpine’s sole and absolute discretion, Consultant shall
not disclose any Confidential Information (i) to any third party nor give
any third party access thereto, nor (ii) use any Confidential Information
except to perform the Services hereunder, nor (iii) disclose the terms and
conditions of this Agreement; provided, however, that the foregoing will not
apply to the extent Consultant is required to disclose any Confidential
Information by applicable law or legal process as long as Consultant promptly
notifies Calpine of such pending disclosure and consults with Calpine prior to
such disclosure as to the advisability of seeking a protective order or other
means of preserving the confidentiality of the Confidential
Information. In the event Consultant is required by applicable law or
legal process to disclose any Confidential Information, Consultant agrees to use
reasonable efforts to obtain assurances that the information so disclosed will
continue to be accorded confidential treatment. This Section 7 shall
survive the expiration of this Agreement.
7.2. As used
in this Section 7:
7.2.1.
“Confidential
Information” shall mean (i) information or material that gives or
could give Calpine some competitive advantage or the disclosure of which could
be detrimental to Calpine’s interests, (ii) information or material which
is owned by Calpine or in which Calpine has an interest, and all other
information or material conceived, originated, discovered or developed, in whole
or in part, alone or with others, by Consultant while performing the Services,
(iii) all information (in writing or otherwise) concerning Calpine
(including, without limitation, information concerning Calpine’s business,
assets, liabilities, operations, affairs, financial condition, projections,
contracts, customers, accounts, marketing and/or promotional strategies,
products, plans or prospects) which is not generally known by the public, and
(iv) all analyses, compilations, studies, reports, records or other
documents or materials which contain, or are prepared on the basis of, any
information or material which Calpine furnishes to Consultant or prepared by or
for Consultant based on information or material which Calpine furnishes to
Consultant. Notwithstanding the above, “Confidential
Information” does not include any information or material that
(a) is or becomes public knowledge otherwise than by Consultant’s act or
omission; or (b) is or becomes available to Consultant without obligation
of confidence from a source (other than Calpine) having the legal right to
disclose such information; or (c) is already in Consultant’s possession in
documented form without an obligation of confidence and was not received by
Consultant as a result of a prior relationship with Calpine.
7.2.2.
“Company” shall also
include any and all subsidiaries and affiliates Calpine.
7.3.
Indemnity. Consultant
agrees to indemnify and hold harmless Calpine and its affiliates and their
respective officers, directors, shareholders, partners, members, managers,
employees, agents, successors and assigns from and against any and all claims,
judgments, losses, damages (including special and consequential damages), costs
and expenses, including actual attorneys’ fees and costs, imposed upon or
incurred by any of them resulting or arising out of any breach or threatened
breach of any provision of this Section 7.
7.4.
Representations and
Warranties of Consultant. Consultant represents and warrants
to Calpine that he is not under any contractual or other restriction or
obligation that is
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inconsistent
with the execution of this Agreement, the performance of Consultant’s duties
hereunder, or the rights of Calpine hereunder. Consultant agrees to
indemnify and hold harmless Calpine and its affiliates and their respective
officers, directors, shareholders, partners, members, managers, trustees,
employees, agents, successor and assigns from and against any and all claims,
judgments, losses, damages (including special and consequential damages), costs
and expenses, including actual attorneys’ fees and costs, imposed upon or
incurred by any of them resulting or arising out of any breach of this Section
7.4.
8.
Governing Law;
Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflicts of law principles. Any suit brought in connection with this
Agreement shall be brought in the state or federal courts sitting in San Jose,
California.
9.
Notices. All
notices under this Agreement shall be made by email, as follows:
If to the
Company:
Xxxx
Xxxxx or his successor
xxxx.xxxxx@xxxxxxx.xxx
and
Xxxx
Xxxxx or his successor
xxxxxxx.xxxxx@xxxxxxx.xxx
If to
Consultant:
Xxxxxxx
Xxxxx
xxxxxxxxx0@xxx.xxx
xxxxx.xxxxx@xxxxxxx.xxx
10.
Entire Agreement;
Modification. This Agreement sets forth the final and entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and representations, whether
oral or written, with respect thereto. This Agreement may only be
modified by a written instrument duly executed by the parties.
11.
Third Party
Beneficiaries. This Agreement does not create, and shall not
be construed as creating, any rights enforceable by any person not a party to
this Agreement.
12.
Waiver. The
failure of either party hereto at any time to enforce performance by the other
party of any provision of this Agreement shall in no way affect such party’s
rights thereafter to enforce the same, nor shall the waiver by either party of
any breach of any provision hereof be deemed to be a waiver by such party of any
other breach of the same or any other provision hereof.
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13.
Assignment. Consultant
may not assign this Agreement or any of his rights or obligations hereunder to a
third party without the prior written consent of Calpine.
14.
Further
Assurances. The parties agree to execute and deliver such
additional documents or instruments as may be necessary or appropriate to carry
out the terms of this Agreement, including, without limitation, the terms of
Section 7.3 hereof.
15.
Severability. All
sections, clauses and covenants contained in this Agreement are severable, and
in the event any of them shall be held to be invalid by any court, this
Agreement shall be interpreted as if such invalid sections, clauses or covenants
were not contained herein.
16.
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the
same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date hereinabove set forth.
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CALPINE
CORPORATION
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By:
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/s/ Xxxx
Xxxxx
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Xxxx
Xxxxx
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SVP
Human Resources
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CONSULTANT:
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/s/ Xxxxxxx
Xxxxx
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Xxxxxxx
Xxxxx
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