Exhibit 10.3.6.1
CONSULTING CONTRACT
BETWEEN
CALPINE CORPORATION
AND
XXXXXX X. XXXXXXXXX
CALENDAR YEAR - 2005
TABLE OF CONTENTS
Page
1. SCOPE OF SERVICES 1
2. TERM 1
3. COMPENSATION 1
4. WARRANTY 2
5. INDEPENDENT CONTRACTOR 2
6. INSURANCE 2
7. INDEMNITY 2
8. ASSIGNMENT AND SUBCONTRACTING 2
9. CONFIDENTIALITY 3
10. JURISDICTION 3
11. PUBLICATION 3
12. SURVIVAL 3
13. ENTIRE CONTRACT AND AMENDMENTS 3
14. BINDING EFFECT 4
CONSULTING CONTRACT
THIS CONSULTING CONTRACT ("Contract") is made and entered into effective as
of January 1, 2005 (the "Effective Date") 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, it is agreed as
follows:
1. SCOPE OF SERVICES
CONSULTANT agrees to provide advice and guidance on various management
issues to the President and members of his senior staff.
2. TERM
2.0 This Contract shall be for a term lasting from the Effective Date
until December 31, 2005, unless earlier terminated pursuant to this
Contract or extended by mutual agreement of the parties.
2.1 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, 2005, 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 stock options under the Discretionary Option Grant
Program of the Calpine Corporation 1996 Stock Incentive Plan to
purchase 10,000 shares. The grant will be effective on the first
business day following January 1, 2005; 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 of the grant. The options
will be vest in twelve monthly installments and have a ten-year term.
(c) 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
re-perform deficient Services without charge to CALPINE up to a maximum
amount equivalent to the compensation received for the deficient Services
rendered.
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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, lost
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.
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 willful 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
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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.
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 Contract shall be binding upon and inure to the benefit of the parties
hereto, and to their successors and permitted assigns.
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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: /s/ Xxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------ -----------------------
Title: Executive Vice President Date: January 17, 2005
Date: January 20, 2005
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