Exhibit 10.1


 


CONSULTING AGREEMENT


 


This Consulting
Agreement (this “Agreement”) is entered into as of January 14, 2021, by and between Jeffrey S. Levy
(the “Consultant”) and Atlantic Power Corporation, a corporation existing under the laws of the Province of
British Columbia (together with its subsidiaries and affiliates, collectively, the “Company”).


 


WHEREAS, the Company,
TIDAL POWER HOLDINGS LIMITED, a private limited company existing under the laws of the United Kingdom (“BidCo”)
and TIDAL POWER AGGREGATOR, LP, a limited partnership existing under the laws of the Cayman Islands (“AssetCo”
and, together with BidCo, the “Purchasers”) have entered into that certain Arrangement Agreement and Plan of
Arrangement dated as of the date hereof (the “Arrangement Agreement”) (which will constitute a “change
in control event” within the meaning of Code Section 409A (as defined below)).


 


WHEREAS, the Consultant
formerly served as an employee and General Counsel, Senior Vice President and Corporate Secretary of the Company and resigned from
his employment with the Company effective January 1, 2021; and


  


WHEREAS, the Company
desires to retain the consulting services of the Consultant on a transitional basis to assist the Company solely with respect to
matters relating to the Arrangement Agreement and the transactions contemplated thereby, commencing immediately following the execution
of the Arrangement Agreement (the date on which such execution occurs, the “Signing Date”), on the terms and
conditions set forth herein.


 


NOW THEREFORE, in consideration
of the premises, agreements, and covenants herein, the receipt and sufficiency of which is hereby acknowledged, the Consultant
and the Company agree as follows:


 


 1.              Consulting Services.




 


(a)            Consulting
Period. The Consultant shall be retained by the Company to perform consulting services for the Company as an independent contractor
for the period commencing immediately following the execution of the Arrangement Agreement on the Signing Date and expiring on
December 31, 2021 (the “Consulting Period”), unless sooner terminated in accordance with the terms hereof.


 


(b)           Scope
of Consulting Services. During the Consulting Period, the Consultant shall assist the Company as reasonably requested from
time to time in responding to inquiries solely with respect to matters relating to the Arrangement Agreement and the transactions
contemplated thereby, about which the Consultant, by virtue of his prior employment with the Company, has relevant knowledge and
information (the “Consulting Services”). The Consultant shall report directly to the Chief Executive Officer
of the Company, or such other officer or director of the Company as may be determined from time to time by the Chief Executive
Officer.


 


(c)         Performance
of Consulting Services. The Consulting Services will be performed at such times as mutually agreed upon by the Company and
the Consultant; provided that, the Company expressly acknowledges and agrees that during the Consulting Period (i) the
Consultant’s full-time employment shall have priority over the performance of the Consulting Services, and (ii) the
Consultant will be employed full-time with another business enterprise in the energy infrastructure business with investments in
power generation, transmission, storage, and related projects that may compete with or have business interests adverse to those
of the Company.


 






     


     


    

 


(d)          Status
as Independent Contractor; Limited Authority. The Consultant hereby acknowledges and agrees that (i) he shall provide
the Consulting Services to the Company as an independent contractor, (ii) this Agreement shall not be construed to create
any association, partnership, joint venture, employment or agency relationship between the Consultant and the Company for any purpose
and (iii) he may not, at any time, act as a representative for or on behalf of the Company for any purpose or transaction,
and may not bind or otherwise obligate the Company in any manner whatsoever.


 


(e)            Consulting
Fee. In consideration of (i) the Consulting Services and (ii) continued compliance with Section 2 hereof, subject
to the occurrence of the Effective Time (as defined in the Arrangement Agreement), the Company shall pay the Consultant a consulting
fee of US$600,000 in the aggregate (the “Consulting Fee”), which will be fully-earned as of the Effective Time,
and due and payable in equal quarterly payments of US$150,000 on the last business day of each quarter during the Consulting Period.
In the event that a scheduled quarterly payment date occurs prior to the Effective Time, any payment that would have been paid
on such date shall be paid concurrently with the Effective Time.


 


(f)            Taxes.
The parties hereby acknowledge and agree that the Consulting Fee shall not be deemed to be wages and the Consultant will have sole
responsibility for the withholding or payment of taxes, including income, social security, employment, self-employment or other
taxes that may be applicable to the Consultant or payable by reason of the Consulting Services rendered by the Consultant to the
Company or the Consulting Fee payable to the Consultant by the Company. The aggregate amount paid to the Consultant during the
calendar year of the Consulting Period will be reported by the Company to the Consultant and the U.S. Internal Revenue Service
on an IRS Form 1099-MISC.


 


(g)            Expenses.
The Consultant shall not incur any out-of-pocket expenses in connection with the provision of Consulting Services without the prior
approval of the Company.


 


(h)           Early
Termination. The Company or the Consultant may elect to terminate the Consulting Services prior to the end of the Consulting
Period; provided that, if the Company terminates the Consulting Services prior to the end of the Consulting Period for any
reason other than the Consultant’s material breach of his obligations under this Agreement, which the Consultant has not
cured within 30 days after receiving reasonable notice of such breach from the Company, then the Company shall continue to pay
the Consultant the Consulting Fee for the remainder of the Consulting Period in accordance with the terms of this Agreement; and
provided further that, if the Consultant terminates the Consulting Services prior to the end of the Consulting Period for
any reason other than the Consultant’s death or disability, or the Company’s material breach of its obligations under
this Agreement, which the Company has not cured within 30 days after receiving reasonable notice of such breach from the Consultant,
then the Company will not be required to pay the Consultant the Consulting Fee for the for the remainder of the Consulting Period
in accordance with the terms of this Agreement.


 


 2.              Additional Covenants of the Consultant. The Consultant expressly acknowledges and agrees that:




 


(a)            the
Consultant will return to the Company, and will not retain, all Company files and documents (and any copies thereof in any form
or media) and that Consultant shall abide by any and all contractual, common law and/or statutory obligations relating to protection
and nondisclosure of the Company’s trade secrets and/or confidential and proprietary documents and information;


 


(b)           the
Consultant will not at any time for any reason whatsoever use or reveal to any person or entity (both commercial and non-commercial)
any Confidential Information1 of
the Company; provided that, this restriction shall not apply to: (i) information that may be disclosed generally or
is in the public domain through no fault of the Consultant; (ii) information received from a third party outside the Company
that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization
of the Company; (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed,
but only to the extent such disclosure is required; or (v) information reported to any governmental agency or entity, including
but not limited to the Department of Justice, in connection with a possible violation of federal or state law or regulation; and


 





 






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The term “Confidential Information,” as used in this Agreement, shall be given its broadest possible
interpretation under law and shall include, but not be limited to, trade secrets, anything tangible or intangible or electronically
kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production
or management information, design, process, procedure, formula, invention or improvement; information regarding plans for research,
development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices
and costs, suppliers and customers; information regarding the skills and compensation of other employees of the Company; and any
other confidential and proprietary information and documents related to the Company.


 






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(c)            a
breach of any of the foregoing covenants by the Consultant shall constitute a material breach of this Agreement and, subject to
Section 1(h), the Company will not be required to pay the Consultant the Consulting Fee for the remainder of the Consulting
Period in accordance with the terms of this Agreement.


 


 3.              Miscellaneous.






 


(a)            Entire
Agreement. This Agreement, the Arrangement Agreement and the other documents delivered pursuant hereto or thereto sets forth
the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any and all prior
understandings and agreements between the parties with respect to the subject matter hereof, and neither party shall have any obligation
toward the other except as set forth herein. This Agreement may not be amended, or modified except in writing signed by both parties.
Notwithstanding anything herein to the contrary, nothing in this Agreement shall (x) prohibit the Consultant from making reports
of possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and
rules promulgated under Section 21F of the Securities Exchange Act of 1934, as amended, or Section 806 of the Sarbanes-Oxley
Act of 2002, or of any other whistleblower protection provisions of federal law or regulation, or (y) require notification
or prior approval by the Company of any such report; provided that, the Consultant is not authorized to disclose communications
with counsel that were made for the purpose of receiving legal advice or that contain legal advice or that are protected by the
attorney work product or similar privilege. Furthermore, the Consultant shall not be held criminally or civilly liable under any
federal or state trade secret law for the disclosure of a trade secret that is made (1) in confidence to a federal, state
or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting
or investigating a suspected violation of law or (2) in a complaint or other document filed in a lawsuit or proceeding, if
such filings are made under seal.


 


(b)           Severability
and Reformation. Each of the provisions of this Agreement constitutes independent and separable covenants. Each of the provisions
of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision
hereof is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be ineffective
only to the extent of such invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement.


 


(c)           No
Waiver. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not
similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure
or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise
of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.


 






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(d)           Successors
and Assigns. This Agreement and any rights herein granted are personal to the parties hereto and will not be assigned or otherwise
transferred by either party without the prior written consent of the other party, and any attempt at violative assignment or other
transfer, whether voluntary or by operation of law, will be void and of no force and effect; provided that, the Company
shall require any successor (whether direct or indirect, by purchase, merger, plan of arrangement or otherwise) to all or substantially
all of the business and/or assets of the Company to assume this Agreement in the same manner and to the same extent that the Company
would have been required to perform it if no such succession had taken place. As used in the Agreement, “the Company”
shall mean both the Company (as defined above) and any such successor that assumes this Agreement, by operation of law or otherwise.
This Agreement and all of the Consultant’s rights hereunder shall inure to the benefit of and be enforceable by the Consultant’s
heirs and estate.


 


(e)           No
Conflict; Governing Law. Each party represents that the performance of all of the terms of this Agreement will not result in
a breach of, or constitute a conflict with, any other agreement or obligation of that party. This Agreement shall be deemed to
have been made in the Commonwealth of Massachusetts, shall take effect as an instrument under seal within the Commonwealth of Massachusetts,
and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect
to conflict of law principles thereof. The parties agree that any action, demand, claim or counterclaim relating to this Agreement
shall be commenced in the Commonwealth of Massachusetts, in a court of competent jurisdiction and that the venue for such actions
shall lie exclusively in the Commonwealth of Massachusetts.


 


(f)           Legal
Fees. If any action or proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach,
or default in connection with any provision of this Agreement, the prevailing party shall be reimbursed by the losing party for
all reasonable attorneys’ fees and other costs incurred in such action or proceeding, in addition to any other relief to
which it may be entitled. The term “prevailing party” shall mean the party who substantially obtains or defeats the
relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other party of its claim
or defense.


 


(g)           Code
Section 409A. The intent of the parties is that payments and benefits under this Agreement shall comply with or be exempt
from Internal Revenue Code Section 409A and applicable guidance promulgated thereunder (collectively “Code Section 409A”)
and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in accordance therewith.


 


(h)           Notices.
All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed
duly given if it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended
recipient at the addresses maintained in the Company’s records. Notices sent to the Company should be directed to the attention
of the Company’s Chief Executive Officer.


 


4.            Counterpart
Agreements. This Agreement may be executed, including by electronic signature, in any number of counterparts (including counterparts
by facsimile or any other form of electronic communication) and all such counterparts taken together shall be deemed to constitute
one and the same instrument. The parties shall be entitled to rely upon delivery of an executed facsimile or similar executed electronic
copy of this Agreement, and such facsimile or similar executed electronic copy shall be legally effective to create a valid and
binding agreement between the parties.


 






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5.             Rules of
Construction. The parties to this Agreement waive the application of any law or rule of construction providing that ambiguities
in any agreement or other document shall be construed against the party drafting such agreement or other document.


 


6.             Captions
and Headings. The captions and headings are for convenience of reference only and do not affect the construction or interpretation
of this Agreement.


 


* * * * * *


 






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IN WITNESS WHEREOF, the parties hereto have
caused this Consulting Agreement to be duly executed as of the day and year first above written.


 


	 	ATLANTIC
    POWER CORPORATION
	 	 
	 	 
	 	By:	/s/
Terrence Ronan
	 	 	Name: Terrence Ronan
	 	 	Title: Executive Vice President and Chief Financial Officer
	 	 	 
	 	 
	 	CONSULTANT
	 	 
	 	/s/
    Jeffrey S. Levy
	 	Jeffrey
    S. Levy




 


[Signature Page to Consulting Agreement]