Exhibit 10.2
CAPSTONE
TURBINE CORPORATION
CONSULTING
AGREEMENT
This Consulting Agreement
(Agreement) is entered into as of December 1,
2008, by and between Capstone Turbine Corporation (the Company)
and Leigh Estus (Consultant). The Company desires to retain Consultant as
an independent contractor to perform consulting services for the Company, and
Consultant is willing to perform such services, on the terms described
below. In consideration of the mutual promises
contained herein, the parties agree as follows:
1. Services and
Compensation. Consultant
agrees to perform for the Company the services described in Exhibit A
(the Services), and the Company agrees to
pay Consultant the compensation described in Exhibit A for
Consultants performance of the Services.
2. Confidentiality.
A. Definition. Confidential Information
means any non-public information that relates to the actual or anticipated
business or research and development of the Company, technical data, trade
secrets or know-how, including, but not limited to, research, product plans or
other information regarding Companys products or services and markets
therefor, customer lists and customers (including, but not limited to,
customers of the Company on whom Consultant called or with whom Consultant
became acquainted during the term of this Agreement), software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering and
hardware configuration information, marketing, finances or other business information. Confidential Information does not include
information that (i) is known to Consultant at the time of disclosure to
Consultant by the Company as evidenced by written records of Consultant, (ii) has
become publicly known and made generally available through no wrongful act of
Consultant or (iii) has been rightfully received by Consultant from a
third party who is authorized to make such disclosure.
B. Nonuse and
Nondisclosure. Consultant
will not, during or subsequent to the term of this Agreement, (i) use the
Confidential Information for any purpose whatsoever other than the performance
of the Services on behalf of the Company or (ii) disclose the Confidential
Information to any third party.
Consultant agrees that all Confidential Information will remain the sole
property of the Company. Consultant also
agrees to take all reasonable precautions to prevent any unauthorized
disclosure of such Confidential Information, including, but not limited to, informing each of Consultants employees
and contractors, if any, with access to any Confidential Information of the
terms of this provision. Without
the Companys prior written approval, Consultant will not directly or
indirectly disclose to anyone the existence of this Agreement or the fact that
Consultant has this arrangement with the Company.
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6. Term and
Termination.
A. Term. The term of this Agreement will begin on the
date of this Agreement and will continue until the earlier of (i) final
completion of the Services or (ii) termination as provided in Section 6.B.
B. Termination. Either party may terminate this Agreement
upon giving the other party 14 days prior written notice of such termination
pursuant to Section 11.E of this
Agreement. The Company may terminate
this Agreement immediately and without prior notice if Consultant refuses to or
is unable to perform the Services or is in breach of any material provision of
this Agreement.
C. Survival. Upon such termination, all rights and duties
of the Company and Consultant toward each other shall cease except:
(1) The Company will pay, within 30
days after the effective date of termination, all amounts owing to Consultant
for Services completed and accepted by the Company prior to the termination
date and related expenses, if any, submitted in accordance with the Companys
policies and in accordance with the provisions of Section 1 of this
Agreement; and
(2) Section 2
(Confidentiality), Section 3 (Ownership), Section 4 (Conflicting
Obligations), Section 7 (Independent Contractor; Benefits), Section 8 (Indemnification),
Section 9 (Nonsolicitation) and Section 10 (Arbitration and Equitable
Relief) will survive termination of this Agreement.
7. Independent
Contractor; Benefits.
A. Independent
Contractor. It is the express
intention of the Company and Consultant that Consultant perform the Services as
an independent contractor to the Company.
Nothing in this Agreement shall in any way be construed to make
Consultant an agent, employee or representative of the Company. Without limiting the generality of the
foregoing, Consultant is not authorized to bind the Company to any liability or
obligation or to represent that Consultant has any such authority. Consultant agrees to furnish (or reimburse
the Company for) all tools and materials necessary to accomplish this Agreement
and shall incur all expenses associated with performance, except as expressly
provided in Exhibit A.
Consultant acknowledges and agrees that Consultant is obligated to
report as income all compensation received by Consultant pursuant to this
Agreement. Consultant agrees to and
acknowledges the obligation to pay all self-employment and other taxes on such
income.
B. Benefits.
The Company and Consultant agree that
Consultant will receive no Company-sponsored benefits from the Company. If Consultant is reclassified by a state or
federal agency or court as Companys employee, Consultant will become a
reclassified employee and will receive no benefits from the Company, except
those mandated by state or federal law, even if by the terms of the Companys
benefit plans or programs of the Company in effect at the time of such
reclassification, Consultant would otherwise be eligible for such benefits.
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E. Notices. Any notice or other communication required or
permitted by this Agreement to be given to a party shall be in writing and
shall be deemed given if delivered personally or by commercial messenger or
courier service, or mailed by U.S. registered or certified mail (return receipt
requested), or sent via facsimile (with receipt of confirmation of complete
transmission) to the party at the partys address or facsimile number written
below or at such other address or facsimile number as the party may have
previously specified by like notice. If
by mail, delivery shall be deemed effective three business days after mailing
in accordance with this Section 11(E).
(1)
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If to the Company, to:
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21211 Nordhoff Street, Chatsworth, CA 91311
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Attention:
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Telephone:
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(818) 734-5300
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Facsimile:
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(818)
734-5320
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(2) If
to Consultant, to the address for notice on the signature page to this
Agreement or, if no such address is provided, to the last address of Consultant
provided by Consultant to the Company.
F. Severability. If any provision of this Agreement is found
to be illegal or unenforceable, the other provisions shall remain effective and
enforceable to the greatest extent permitted by law.
(Remainder of page intentionally
left blank.)
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EXHIBIT
A
Services and Compensation
1. Contact. Consultants principal Company contact:
Name: Larry Colson
Title:
Sr. Vice President, Human Resources
2. Services. The Services shall include, but shall not be
limited to, the following:
Operations
consulting services as requested by Larry Colson, or his designee, not to
exceed 8 hours on average per month.
3. Consultant
will provide services at the rate of $1,000 per month for seven months. Consultant will receive payment for services
at the end of each month beginning December 31, 2008 with the last payment
being June 30, 2009.
4. During the consultancy
period, consultant will continue to vest in the stock options and restricted
stock units (RSU) previously granted.
All vesting will end on June 30, 2009 at which time the consultant
is responsible for contacting the company for a closing statement. Consultant may exercise stock options
throughout the consultancy period or within 90 days from the end of the consultancy
agreement, in accordance with the Plan documentation. Consultant will receive RSUs as applicable
during the term of the consultancy period.
CONSULTANT
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CAPSTONE
TURBINE CORPORATION
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By:
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/s/ LEIGH ESTUS
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By:
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/s/
LARRY COLSON
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Name:
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Leigh Estus
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Name: Larry
Colson, Sr. VP Human Resources
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Title:
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By:
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/s/ Darren Jamison
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Name: Darren
Jamison, President & CEO
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