Exhibit 10.32
LEASED EMPLOYEE AGREEMENT
This Agreement is made and entered into on this 30th day of April,
1996, by and between NRG Generating (U.S.) Inc. ("Generating"), a Delaware
corporation, and NRG Energy, Inc. ("Energy"), a Delaware corporation.
RECITALS
1. Generating needs a qualified executive to temporarily serve as
its president and chief executive officer.
2. Xxxxxxx X. Xxxxx ("Xxxxx") is an executive employee of Energy.
3. Generating and Energy, with Xxxxx'x concurrence, desire that
Energy lease the services of Xxxxx to Generating pursuant to the terms and
conditions of this agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Agreement to Lease Xxxxx. Energy hereby leases to Generating the
services of Xxxxx to serve as the president and chief executive officer of
Generating and its related entities, and to perform such other duties
commensurate with the position of president and chief executive officer of
Generating, as Generating, in its sole discretion, directs or authorizes
(collectively referred to herein as the "Work").
2. Duration and Termination. This agreement shall be for an
indefinite term. It will terminate upon the earliest of any of the
following events:
a) Xxxxx'x death.
b) As permitted by applicable law, because of Xxxxx'x
disability, as determined by a qualified medical provider of
Generating's choice, whose opinion it is that Xxxxx cannot
perform the duties of his position for a period of 90
consecutive days or longer because of disability.
c) Xxxxx'x completion of the Work.
d) Either Generating or Energy serves written notice
on the other terminating this agreement. Such termination
may be with or without cause.
e) Duties on Termination. Upon termination of this
agreement, Energy shall immediately cause Xxxxx to
discontinue his performance of the Work. Energy shall also
cause Xxxxx to immediately
surrender any and all of Generating's property in
his possession, including all copies of same. Any remaining
portion of the Contract Price due and owing for the lease of
Xxxxx'x services up to the date of termination of this
agreement shall be due and payable thirty (30) days
thereafter.
3. Contract Price and Time of Payment.
(a) Generating will pay to Energy for the leasing of
Xxxxx'x services the actual total payroll and benefit cost
of Xxxxx.
(b) Energy will periodically submit to Generating a
request for payment setting forth the portion of the
Contract Price then due and owing. Generating shall pay
such amount within thirty (30) days of receipt of such
request.
4. Status of Parties.
(a) The status of Energy is that of an independent
contractor, and not of an agent or employee, of Generating.
As such, Energy shall have no authority to enter into
contracts or any other commitments on behalf of Generating.
(b) The status of Xxxxx in performing the Work is that
of an employee of Energy and of an independent contractor of
Generating. Energy will be solely responsible for the
hiring, dismissal, and control of Xxxxx. As such,
Generating shall have no liability to any individual or
entity arising from Xxxxx'x employment by Energy except as
provided in section 5 below.
(c) Generating and Energy shall not in any manner make
any representations that an employer/employee relationship
exists between them or between Generating and Xxxxx. Energy
shall cause Xxxxx to covenant that he shall not in any
manner make any representations that such employer/employee
relationships exist.
5. Indemnification.
(a) Generating hereby indemnifies and holds harmless
Energy, its officers, directors and shareholders from and
against any and all liabilities, suits, actions, judgments,
costs, losses, damages or claims of whatsoever nature,
arising out of any acts or omissions of Xxxxx while he is
acting on behalf of Generating in performance of the Work
hereunder, including, without limitation, any injuries to or
deaths of persons or any damage to
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property or equipment. In the event any liability
of Generating shall arise by reason of the sole negligence
of Energy or Energy I s employees or agents, excluding
Xxxxx, then Generating shall not be liable under the
provisions of this subparagraph (a) of this section five (5)-
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(b) Notwithstanding anything herein to the contrary,
in the event that liability is incurred as a result of the
actions or inactions of Xxxxx while he is acting on behalf
of Energy, then Energy hereby indemnities and holds harmless
Generating, its officers, directors and shareholders against
any and all suits, actions, judgments, costs, losses,
damages or claims of whatsoever nature arising out of or
related to such actions or inaction of Xxxxx, including,
without limitation, any injuries to or deaths of persons or
any damage to property or equipment.
(c) In case any claim, demand, action, suit or
proceeding shall be made, asserted or brought against any
party entitled to indemnity under this section five (5)
("Indemnified Party") , such Indemnified Party shall notify
the party obligated to indemnify under this section five (5)
("Indemnifying Party") in writing of the commencement
thereof within fifteen (15) days, and the Indemnifying Party
shall be entitled, at its expense and through counsel
reasonably acceptable to such Indemnified Party, to
participate in and, to the extent that the Indemnifying
Party desires, to assume and control the defense thereof;
provided, however, that the Indemnifying Party shall not be
entitled to assume and control the defense of any such
claim, demand, action, suit or proceeding, if and to the
extent that, in the reasonable opinion of such Indemnified
Party, such action, suit or proceeding involves the
potential imposition of criminal liability on such
Indemnified Party or a conflict of interest between such
Indemnified Party and the Indemnifying Party; and provided,
further, that the Indemnifying Party shall not agree to any
settlement or compromise with respect to such claim, demand,
action, suit or proceeding unless such settlement or
compromise is concluded without expense to the Indemnified
Party and includes a full release from liability of the
Indemnified Party from such claim, demand, action, suit or
proceeding, and all related claims, liabilities and causes
of action. The Indemnified Party shall have no liability
under this subsection (c) of section five (5) with respect
to any claim, demand, action, suit or proceeding for which
the required 15 day notice is not provided, to the extent
that the failure to give such notice prejudices the
Indemnifying Party. The
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Indemnified Party shall supply the Indemnifying
Party with such information and documents requested by such
Indemnifying Party as are necessary or advisable for such
Indemnifying Party to participate in the defense of any
claim, demand, action, suit or proceeding to the extent
permitted by this section five (5). No Indemnified Party
shall enter into any settlement or other compromise with
respect to any such claim, demand, action, suit or
proceeding without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably
withheld, unless such Indemnified Party waives its right to
indemnification therefor. Notwithstanding anything to the
contrary contained in this section five (5), with respect to
any claim, demand, action, suit or proceeding the defense of
which an Indemnifying Party shall have assumed, if any
Indemnified Party determines that such Indemnifying Party is
not conducting such defense in a diligent and reasonable
manner, such Indemnified Party may assume and control such
defense at the cost and expense of the Indemnifying Party;
provided, however, that in the event such Indemnified Party
assumes such defense:
(1) such Indemnified Party shall
conduct such defense in a diligent and reasonable
manner with a view to incurring only such expenses as
are reasonable in light of the claim, demand, action,
suit or proceeding;
(2) such Indemnified Party shall advise the
Indemnifying Party of all settlement offers received in respect
thereof; and
(3) such Indemnified Party shall agree in writing
that the Indemnifying Party shall not have liability in respect of the
related claim, demand, action, suit or proceeding in excess of the
amount of any settlement offer (which settlement offer shall include a
full release from liability of the Indemnified Party from the claim,
demand, action, suit or proceeding and all related claims, liabilities
and causes of action) proposed to such Indemnified Party or to the
Indemnifying Party, which the Indemnifying Party shall have offered to
fund.
6. Duties as Employer. As Xxxxx'x employer, Energy shall be solely
responsible for all expenses, costs, liabilities, assessments, taxes,
insurance, and other obligations arising from and incidental to its
employment of Xxxxx. This includes, without limitation, payment of Xxxxx'x
wages, benefits, and payroll and other employment-related taxes. Xxxxx
shall be covered under any
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of Energy's liability and workers compensation insurance policies as Energy
obtains in connection with its employment of employees similarly situated
to Xxxxx or as required by applicable law.
7. Proprietary Information. As a material condition of the lease of
Xxxxx'x services hereunder, Energy shall cause Xxxxx to execute any and all
appropriate agreements with Generating for protecting against
misappropriation or unauthorized disclosure of Generating's intellectual
property, and its confidential information and other trade secrets. Energy
will not employ Xxxxx in any capacity which causes or requires him to
disclose such material except as necessary for him to perform the Work. In
the course of leasing Xxxxx'x services hereunder, Generating shall not
cause or require him to disclose or misappropriate in any manner Energy's
intellectual property, or confidential information and other trade secrets.
In the event either Energy or Generating intentionally or unintentionally
comes into possession of any of the other's foregoing property or
information, it shall immediately surrender the originals and all copies of
same.
8. Miscellaneous.
(a) Each signatory hereto represents and warrants that he/she
has the requisite legal and corporate authority to enter into
this agreement on behalf of the party he/she represents, and that
any necessary corporate action for the execution and performance
of the obligations hereunder has been taken.
(b) Neither party may assign this agreement or any rights,
duties, obligations, or covenants herein without the prior
written consent of the other. Any purported assignment without
such consent shall have no force or effect.
(c) Failure by either party hereto on any occasion to enforce
and require the strict keeping and performance of any of the
terms and conditions of this agreement shall not constitute a
waiver of any such terms and conditions at any future time and
shall not prevent such party from insisting on the strict keeping
and performance of such terms and conditions at any time.
(d) The provisions of sections 4, 5 and 7 of this agreement
shall survive its termination and remain in full force and
effect.
(e) The unenforceability or invalidity of any provision of this
agreement shall not affect the validity or enforceability of the
remaining provisions hereof.
(f) This agreement and its terms shall be
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governed by, construed, and enforced in accordance
with the laws of the State of Delaware.
(g) Any modification of this agreement shall be binding
only if evidenced in a writing signed by each party through
its authorized representative.
(h) This agreement constitutes the entire agreement between
Generating and Energy concerning the leasing of Xxxxx'x
services for the performance of the Work. Any prior
agreements or understandings of any kind or nature
whatsoever preceding the effective date of this agreement
shall not be binding on either party except as incorporated
herein.
IN WITNESS WHEREOF, the parties have each caused this agreement to be
executed by their duly authorized representatives below.
Date: 10-25-96 NRG Energy, Inc.
By:/s/ Xxxxx X. Xxxxxxxx
Its: President
Date: 10-25-96 NRG Generating (U.S.), Inc.
By:/s/ Xxxxxxx Xxxxx
Its: President & CEO
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STATE OF MINNESOTA )
COUNTY OF Hennepin)
On October 25, 1996 before me, Xxxxx X. Xxxxxxx, a Notary Public in and
for said State, personally appeared Xxxxxxx X. Xxxxx personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxx X. Xxxxxxx
