CONSULTING CONTRACT
THIS CONSULTING CONTRACT ("Contract") is made and entered into
effective as of the 1st day of January, 1997, between Calpine Corporation, a
Delaware corporation, of 00 Xxxx Xxx Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000
("CALPINE") and XXXXXX X. XXXXXXXXX, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("CONSULTANT"), with reference to the following:
In consideration of the mutual agreements herein contained, the parties
wish to amend and restate the Contract in its entirety as follows:
1. SCOPE OF SERVICES
1.1 CONSULTANT agrees to perform the following services:
(a) Provide advice and guidance on various management
issues to the President and members of his senior
staff.
(b) Provide advice and guidance to CALPINE's Business
Development staff with regard to domestic and
international business, with a more in-depth emphasis
on international business.
(c) In addition, but outside of the Retainer, Consultant
will identify project investment opportunities for
the Corporation and develop projects through to
financing.
2. TERM
2.1 This Contract shall be for a term lasting one year from the
date first specified above, unless earlier terminated pursuant
to this Contract or extended by mutual agreement of the
parties.
2.2 Notwithstanding the above, either party may terminate this
Contract at any time by giving thirty (30) days written notice
to the other party, provided, however, that any payments due
and payable upon termination shall be paid.
3. COMPENSATION
Compensation to CONSULTANT for services rendered shall be as follows:
(a) CALPINE will pay CONSULTANT a monthly retainer (the
"Retainer") of Five Thousand Dollars ($5,000.00), commencing
January 1, 1997, which amount will be payable at the beginning
of each month under the Term hereof.
(b) In addition to the cash compensation stated in (a) above,
CALPINE will grant to CONSULTANT ten thousand (10,000) stock
options under the Calpine Corporation 1996 Stock Incentive
Plan. The grant will be effective April 1, 1997; the option
price for this grant will be the fair market value of Calpine
Corporation stock at the close of business on the effective
date. The options will be 25% vested on the effective date,
and the balance will vest 25% on July 1, 1997; October 1,
1997; and January 1, 1998.
(c) A fee will be negotiated between the parties for those project
investment opportunities identified and completed through
closure by CONSULTANT.
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(d) In addition to the above, CALPINE agrees to reimburse
CONSULTANT for all travel and other actual out-of-pocket
expenses incurred in support of this Contract. Such expenses
will not be incurred by CONSULTANT without prior approval of
CALPINE. CONSULTANT shall furnish copies of all receipts with
invoices for expenses incurred in support of this Contract.
4. WARRANTY
CONSULTANT assumes professional and technical responsibility for
performance of Services to be provided hereunder in accordance with
recognized professional standards. If within one year following
completion of the Services, the Services fail to meet the aforesaid
standards, and CALPINE promptly advises CONSULTANT in writing,
CONSULTANT agrees to reperform deficient Services without charge to
CALPINE up to a maximum amount equivalent to the compensation received
for the deficient Services rendered.
5. INDEPENDENT CONTRACTOR
5.1 CONSULTANT acknowledges and agrees that it enters into this
Contract as an independent contractor. Under no circumstances
shall CONSULTANT look to CALPINE as its employer, nor as a
partner, agent or principal. CONSULTANT shall not be entitled
to any benefits accorded to CALPINE's employees including,
without limitation, workers compensation, disability
insurance, and vacation or sick pay. CONSULTANT shall be
responsible for providing, at its expense and in its name,
disability, workers' compensation or other insurance as well
as licenses and permits usual or necessary for conducting the
Services hereunder.
5.2 CONSULTANT shall pay, when and as due, any and all taxes
incurred as a result of CONSULTANT's compensation hereunder,
including estimated taxes. CONSULTANT hereby indemnifies
CALPINE for any claims, losses costs, fees, liabilities,
damages or injuries suffered by CALPINE arising out of
CONSULTANT's breach of this section.
5.3 CONSULTANT represents that he or she has the qualifications
and ability to perform the Services in a professional manner,
without the advice, control or supervision of CALPINE.
CONSULTANT shall be solely responsible for the professional
performance of the Services, and shall receive no assistance,
direction or control from CALPINE. CONSULTANT shall have sole
discretion and control of its work and the manner in which it
is performed.
6. INSURANCE
6.1 CONSULTANT shall maintain in full force and effect during the
term of this Contract, the insurance described below, as well
as such other insurance as deemed reasonably necessary by
CALPINE to insure the services performed hereunder.
6.1.1 Automobile liability insurance covering owned,
non-owned and hired automobiles for a combined single
limit of $100,000/$300,000 for bodily injury and
property damage.
6.2 CONSULTANT shall, upon request, furnish certificates showing
that the above insurance will be in effect during the term of
this Contract and shall specify that CALPINE must be given, in
writing, thirty (30) days notice of cancellation, termination,
or alternation of the policies evidenced by certificates. It
is acknowledged, understood and agreed that no payment shall
be due from CALPINE under this Contract at any time when
CONSULTANT is not in full compliance with this provision
dealing with insurance.
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7. INDEMNITY
7.1 CALPINE agrees to indemnify CONSULTANT and hold him harmless
against any claim by any person that CONSULTANT's performance
arising from or in connection with CONSULTANT's relationship
with CALPINE renders CONSULTANT liable to such person, and
against any losses or damages suffered by CALPINE and its
affiliates as a result of any such claim (including legal fees
and expenses); provided, however, that such indemnity will not
extend to any action taken or omitted by CONSULTANT as a
result of gross negligence or wilful misconduct.
7.2 CONSULTANT shall not be liable for any consequential or
indirect damages occurring as a result of any recommendation,
opinion or advice given by CONSULTANT, or from any
implementation of CONSULTANT's recommendations by CALPINE, or
from any other services performed hereunder by CONSULTANT for
CALPINE.
8. ASSIGNMENT AND SUBCONTRACTING
CONSULTANT shall not have the right to assign this Contract or
subcontract any of the work without the prior written consent of
CALPINE. CONSULTANT shall supervise all work subcontracted by
CONSULTANT in performing the Services and shall be responsible for all
work performed by a subcontractor as if CONSULTANT itself had performed
such work. The assignment or subcontracting of any work to
subcontractors shall not relieve CONSULTANT from any of its obligations
under this Contract with respect to the Services.
9. CONFIDENTIALITY
All data, information, work papers, technology and reports furnished or
disclosed by CALPINE to CONSULTANT or its personnel in the course of
performing the Services ("Information") are and shall remain the sole
property of CALPINE and shall be kept confidential by CONSULTANT, and
shall be delivered over to CALPINE at CALPINE's request. CONSULTANT
agrees not to divulge all or any part of the Information to third
parties, without the prior written consent of CALPINE, unless:
(a) The Information is known to CONSULTANT prior to obtaining the
same from CALPINE;
(b) The Information is, at the time of disclosure by CONSULTANT,
then in the public domain; or
(c) The Information is obtained by CONSULTANT from a third party
who did not receive same, directly or indirectly, from CALPINE
and who has no obligation of secrecy with respect thereto.
CONSULTANT further agrees that it will not, without the prior written
consent of CALPINE, disclose to any third party any of such Information
developed or obtained by CONSULTANT in the performance of this
Contract. If so requested by CALPINE, CONSULTANT further agrees to
require its employees to execute a nondisclosure agreement prior to
performing Services under this Contract.
10. JURISDICTION
This Contract shall be governed by and be construed in accordance with
the laws of the State of California.
11. PUBLICATION
CONSULTANT shall not use CALPINE's name or trademarks, photographs or
otherwise claim any affiliation with CALPINE in any publication or
public forum without obtaining prior written approval from CALPINE.
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12. SURVIVAL
The rights and obligations of the parties, which, by their nature, are
normally intended to survive the termination or completion of this
Contract shall remain in full force and effect following termination of
this Contract for any reason.
13. ENTIRE CONTRACT AND AMENDMENTS
This Contract, together with Exhibits and Schedules, if any, attached
hereto, all of which are incorporated herein as part of this Contract
by this reference, and together with all purchase orders, contain the
entire agreement between the parties hereto with respect to the subject
matter hereof. No amendment to this Contract or to any purchase order
shall be binding upon either party hereto, unless it is in writing and
executed on behalf of each party hereto by a duly authorized
representative and expressly specified as such.
14. BINDING EFFECT
This First Amended and Restated Contract shall be binding upon and
inure to the benefit of the parties hereto, and to their successors and
permitted assigns.
IN WITNESS WHEREOF, this Contract is executed effective as of the day
and year first above written.
CALPINE: CONSULTANT:
CALPINE CORPORATION XXXXXX X. XXXXXXXXX
By: By:
Title: President Title:
Date: April 3, 1997 Date:
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