April 7, 2008 Chuck Clark
EXHIBIT
10.3.1
April 7,
2008
Xxxxx
Xxxxx
0000
Xxxxxxxx Xxx.
Apt
1615
Houston,
TX 77046
Re. Employment
Separation
Dear
Xxxxx:
Your
employment with Calpine will end effective May 30, 2008. 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 May 30, 2008 (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 Change in Control
and Severance Benefits Plan (“the Plan”) 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 Plan.
3. Participation in 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 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. However, if you and Calpine enter into a Consulting
Agreement effective immediately after your separation from employment by
Calpine, you may retain the Calpine laptop computer and home fax machine/printer
in your possession, as well as your Calpine email address, during the term of
any such Consulting Agreement.
5. References. You
should direct all requests for employment references to Xxxx Xxxxx in Xxxxxxx’s
Human Resources Department, or his 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.
March 21,
2008 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, except to Calpine for its
exclusive benefit during the term of any consulting agreement between you
and Calpine. 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 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, 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
March 21,
2008 Page 3
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; charges
filed with the Equal Employment Opportunity Commission that do not seek monetary
or other personal relief for you; claims asserted in Calpine’s Chapter 11
bankruptcy proceeding for unpaid vacation pay, unpaid deferred compensation, or
indemnity, contribution or reimbursement or claims for acts occurring after the
Separation Date. Nothing in this Agreement is intended to interfere
with your right to make or participate in a complaint or claim with a federal or
state administrative agency including, for example, the National Labor Relations
Board, the Department of Labor, the Equal Employment Opportunity Commission or
the Department of Fair Employment and Housing. However, by signing
this release, you hereby waive the right to recover any monetary or other relief
in such a proceeding. This release is not intended to release any
claims that are unlawful to release.
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 twenty-one (21) 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 e-mailing a written revocation signed by you to Xxxx Xxxxx,
xxxxxx@xxxxxxx.xxx, so that your e-mail is received by Xx. Xxxxx 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 be paid consistent with the terms of the Plan and only after the
seven (7) day revocation period and after Calpine receives this original signed
Agreement, and that this Agreement will not become effective or enforceable
until the revocation period has expired. This Agreement will be
irrevocable after seven (7) days have passed from the date you sign the
Agreement.
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 Plan and
March 21,
2008 Page 4
understand
that under the terms of the Plan, with respect to claims relating in any way to
benefits provided under the Plan, you may be required to follow the Dispute
Resolution procedures identified in the Plan.
12. Attorneys’
Fees. Except as provided in the Dispute Resolution procedures
identified in the Plan, 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. Cooperation. Consistent
with the terms of any consulting agreement between you and Calpine, you agree to
the following: to cooperate with Calpine in the orderly transfer of your
responsibilities to other person(s); to make yourself reasonably available to
Calpine following the Separation Date; to advise Calpine upon request about
matters and disputes with third parties as to which you have knowledge; to
cooperate fully with Calpine in connection with the ongoing SEC inquiry
regarding our financial statements and internal controls over financial
reporting, as well as those of CalGen; to cooperate fully with Calpine in
connection with pending or threatened or possible litigation, arbitration, and
similar proceedings; and to provide testimony in any such proceedings, as your
testimony may be relevant and/or discoverable. Calpine agrees to
reimburse you for reasonable out-of-pocket travel expenses incurred at the
instruction of Calpine in connection with the activities described in this
paragraph.
17. 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.
March 21,
2008 Page 5
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.
18. 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.
19. 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.
20. 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.
21. 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, EXCEPT AS SPECIFIED IN THIS AGREEMENT.
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CALPINE
CORPORATION
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Dated:
April 11, 2008
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By:
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/s/ Xxxx
Xxxxx
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Xxxx
Xxxxx
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SVP
of Human Resources
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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, except as specified in this
Agreement.
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EMPLOYEE
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Dated:
April 11, 2008
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By:
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/s/ Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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