AMENDED AND RESTATED EMPLOYMENT AGREEMENT Between NRG Energy, Inc. and David W. Crane
Exhibit 10.16
THIS AGREEMENT is made as of December 4, 2008, between NRG Energy, Inc. (the “Company”), and
Xxxxx X. Xxxxx (“Executive”).
WHEREAS, the Company has employed the Executive as its President and Chief Executive Officer
since December 1, 2003, pursuant to the terms of an Employment Agreement which was amended as of
March 3, 2006 (“Original Agreement”) and is scheduled to expire by its terms on December 31, 2008;
and
WHEREAS, the parties wish to extend and modify the Original Agreement to more accurately
reflect current circumstances.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Employment. The Company shall continue to employ Executive, and Executive hereby
agrees to continue in employment with the Company, upon the terms and conditions set forth in this
Agreement for the period beginning on December 4, 2008 (the “Effective Date”) and ending as
provided in Section 5 hereof (the “Employment Period”).
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the President and Chief Executive
Officer (“CEO”) of the Company and shall have the normal duties, responsibilities, functions and
authorities customarily exercised by the President and CEO of a company of similar size and nature
as the Company. During the Employment Period, Executive shall render such administrative,
financial and other executive and managerial services to the Company and its affiliates which are
consistent with Executive’s position, as the Board of Directors of the Company (the “Board”) may
from time to time direct.
(b) During the Employment Period, Executive shall report to the Board and shall devote his
best efforts and his full business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs of the Company.
Executive shall perform his duties, responsibilities and functions to the Company hereunder to the
best of his abilities in a diligent, trustworthy, professional and efficient manner and shall
comply with the Company’s policies and procedures in all material respects. In performing his
duties and exercising his authority under this Agreement, Executive shall support and implement the
business and strategic plans approved from time to time by the Board. During the Employment
Period, Executive shall not serve as an officer or director of, or otherwise perform services for
compensation for, any other entity without the prior written consent of the Board. Executive may
serve as an officer or director of, or otherwise participate in, purely educational, welfare,
social, religious and civic organizations so long as such activities
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do not interfere with Executive’s employment. Nothing contained herein shall preclude
Executive from (i) engaging in charitable and community activities; (ii) participating in industry
and trade organization activities; (iii) managing his and his family’s personal investments and
affairs; and (iv) delivering lectures, fulfilling speaking engagements or teaching at educational
institutions; provided, that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
3. Compensation and Benefits.
(a) Beginning on the Effective Date, and ending on December 31, 2008, Executive’s annual base
salary shall be One Million One Hundred Thousand Dollars ($1,100,000.00). For each subsequent
annual period thereafter, the Executive’s annual base salary shall be reviewed by the Board, which
shall determine whether to grant an increase (such initial annual base salary and the annual base
salary as determined and adjusted upward from time to time by the Board are referred to herein as
the “Base Salary”). The Base Salary shall be payable by the Company in regular installments in
accordance with the Company’s general payroll practices (in effect from time to time) but in any
event no less frequently than monthly. For purposes of this Agreement, the Base Salary shall not
include any other type of compensation or benefit paid or payable to the Executive.
(b) Bonuses and Incentive Compensation.
(i) Annual Bonus. Beginning for fiscal year 2008 and for each fiscal year
thereafter during the Employment Period, based on achievement of criteria determined by the
Board as soon as administratively practicable following the beginning of each such fiscal
year with input from Executive, Executive will be entitled to an annual bonus with a target
amount equal to 100% of the Executive’s then Base Salary (the “Annual Bonus”). The Company
shall pay the Annual Bonus in a single cash lump-sum after the end of the Company’s fiscal
year in accordance with procedures established by the Board, but in no event later than two
and one-half months after the end of such fiscal year.
(ii) Maximum Bonus. In addition to the Annual Bonus referenced in paragraph
3(b)(i), beginning for fiscal year 2008 and for each fiscal year thereafter during the
Employment Period, based on achievement of criteria determined by the Board as soon as
administratively practicable following the beginning of each such fiscal year with input
from Executive, Executive shall be eligible to receive a “maximum bonus” in an amount up to,
but not exceeding, 100% of Executive’s then Base Salary (the “Maximum Bonus”). The Company
shall pay the Maximum Bonus in a single cash lump-sum following the end of the Company’s
fiscal year in accordance with procedures established by the Board, but in no event later
than two and one-half months after the end of such fiscal year.
(iii) Long Term Incentive. The Company has previously provided Executive with
a combination of restricted stock or units (“restricted stock”) and stock options that were
defined as the “Executive LTIP” under Original Agreement (for purposes of this Agreement
such awards shall also be referred to herein as the “Executive LTIP”),
pursuant to paragraph 3(b)(iv) of the Original Agreement, which is incorporated herein
by
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reference. The Executive LTIP shall be governed by the terms of paragraph 3(b)(iv) of
the Original Agreement and the applicable award agreements entered into by the Company and
the Executive. In addition, Executive shall be eligible to participate in the NRG Energy,
Inc. Long-Term Incentive Plan, on such terms and conditions as are stated therein.
(c) During the Employment Period, the Company shall promptly reimburse Executive for all
reasonable business expenses incurred by him in the course of performing his duties and
responsibilities under this Agreement which are consistent with the Company’s policies in effect
from time to time with respect to travel, entertainment and other business expenses, subject to the
Company’s requirements with respect to reporting and documentation of such expenses. During the
Employment Period, the Company will promptly reimburse Executive for reasonable expenses incurred
for annual tax return preparation, and ongoing tax advice and financial planning, and for
reasonable legal expenses incurred in connection with negotiating this Agreement and the other
agreements referred to herein; provided that such reimbursements must be made prior to the end of
the calendar year following the calendar year in which such expense was incurred.
(d) In addition to the Base Salary and any bonuses and incentives payable to Executive
pursuant to this Section 3, Executive shall also be entitled to the following benefits
during the Employment Period, unless otherwise modified by the Board:
(i) participation in the Company’s retirement plans, health and welfare plans and
disability insurance plans, under the terms of such plans and to the same extent and under
the same conditions such participation and coverages are provided to other senior management
of the Company;
(ii) term life insurance with a death benefit of $7.75 million;
(iii) prompt reimbursement of the costs, not to exceed $10,000 per year, Executive
incurs in obtaining additional disability insurance coverage with a monthly disability
benefit of up to $30,000;
(iv) five weeks paid vacation each calendar year; and
(v) coverage under the Company’s director and officer liability insurance policy.
4. Board Membership. With respect to all regular elections of directors during the
Employment Period, the Company shall nominate, and use its reasonable efforts to cause the election
of, Executive to serve as a member of the Board. Effective upon the termination or expiration of
the Employment Period, Executive shall resign as a director of the Company and its affiliates, as
the case may be.
5. Termination.
(a) The Employment Period shall end on December 31, 2009, provided, however, that the
Employment Period shall be automatically renewed for successive one-year terms
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thereafter on the
same terms and conditions set forth herein unless either party provides the other party with notice
that it has elected not to renew the Employment Period at least 90 days prior to the end of the
initial Employment Period or any subsequent extension thereof. Notwithstanding the foregoing, (i)
the Employment Period shall terminate immediately upon Executive’s resignation (with or without
“Good Reason,” as defined in the Company’s Executive Change in Control and General Severance Plan,
as in effect from time to time (the “Severance Plan”)), death or Disability (as defined herein) or
(ii) the Employment Period may be terminated by the Company at any time prior to such date for
“Cause” (as defined in the Severance Plan) or without Cause. Except as otherwise provided herein,
any termination of the Employment Period by the Company shall be effective as specified in a
written notice from the Company to Executive, but in no event more than 30 days from the date of
such notice.
(b) For purposes of this Agreement, the definition of Good Reason shall also include the
following without Executive’s consent:
(i) Any failure by the Company to comply with any of the provisions of this Agreement,
other than any isolated, insubstantial and inadvertent failure not occurring in bad faith
and which is remedied by the Company promptly after receipt of written notice thereof given
by the Executive;
(ii) Any failure to elect Executive to the Board at any regular election of directors
during the Employment Period, or any removal of Executive from the Board, for any reason,
during the Employment Period; or
(iii) A change in reporting structure of the Company where Executive is required to
report to someone other than the Board;
provided that in no event shall Executive have Good Reason to terminate his employment unless (A)
Executive gives notice to the Company of the existence of the condition constituting Good Reason
within 90 days of the initial existence of the condition; (B) the Company does not cure such
condition within 30 days of its receipt of such notice; and (C) Executive actually terminates his
employment within 180 days following the initial existence of the condition constituting Good
Reason.
6. Severance.
(a) Termination without Cause or for Good Reason.
(i) In the event of Executive’s termination of employment with the Company (i) by the
Company without Cause, (ii) by Executive for Good Reason or (iii) if the Company notifies
Executive pursuant to Section 5 that it has elected not to renew this Agreement
after the initial term or any subsequent one-year term, Executive shall be entitled to the
severance benefits set forth below in Section 6(a)(ii); provided, however, if such
termination of employment or election of non-renewal occurs within twenty-four (24) months
immediately following a Change in Control (as defined in the Severance Plan) of the Company,
Executive shall in lieu of the severance benefits provided under
Section 6(a)(ii) hereof become entitled to the severance benefits set forth
below in Section 6(a)(iii).
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(ii) As a condition to the payment of the following severance benefits, within 45 days
of the Executive’s termination of employment, the Executive shall execute and deliver, and
the applicable revocation period shall have expired with respect to, the “Release” in the
form attached hereto as Exhibit A, in consideration for which the Company agrees to the
following:
| (A) | The Company shall pay Executive, upon the date that is 45 days following the termination of employment, a lump-sum cash payment in an amount equal to two times the Executive’s annual Base Salary (as in effect at the date of Executive’s termination determined without regard to any reduction in such Base Salary constituting Good Reason). | ||
| (B) | The Company shall pay Executive 50% of the Annual Bonus then in effect that Executive would have received based upon actual satisfaction of the underlying performance conditions through the end of the current bonus period, and further pro-rated for the number of days during such year that Executive was employed by the Company, with such bonus to be paid at the time such bonus would otherwise have been paid had Executive not been terminated; | ||
| (C) | All restricted stock, stock options and other equity awards granted under the Executive LTIP, described in paragraph 3(b)(iv) of the Original Agreement, shall vest in full on the date of such termination of employment, and all stock options shall continue to be exercisable for the remainder of their stated terms. | ||
| (D) | For eighteen (18) months from the date of termination (the “Benefits Continuation Period”), the Company shall reimburse the Executive for his cost to participate in COBRA benefits continuation coverage. | ||
| (E) | The Company shall pay Executive the amounts described in Section 6(d). |
(iii) As a condition to the payment of the following severance benefits, within 45 days
of the Executive’s termination of employment, the Executive shall execute and deliver, and
the applicable revocation period shall have expired with respect to, the “Release” in the
form attached hereto as Exhibit A, in consideration for which the Company agrees to the
following:
| (A) | The Company shall pay Executive, upon the date that is 45 days after termination of employment, a lump-sum cash payment in an amount equal to two and ninety-nine one-hundredths (2.99) times the sum of the following: (x) Executive’s annual Base Salary (as in effect at the date of Executive’s termination determined without |
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regard to any reduction in such Base Salary constituting Good Reason)
and (y) Executive’s target Annual Bonus (excluding the Maximum Bonus
but determined without regard to any reduction in such target Annual
Bonus constituting Good Reason) for the year in which the termination
of employment occurs.
| (B) | The Company shall pay Executive the Annual Bonus then in effect that Executive would have received based upon actual satisfaction of the underlying performance conditions through the end of the current bonus period, and further pro-rated for the number of days during such year that Executive was employed by the Company, with such bonus to be paid at the time such bonus would otherwise have been paid had Executive not been terminated; | ||
| (C) | All restricted stock, stock options and other equity awards granted under the Executive LTIP, described in paragraph 3(b)(iv) of the Original Agreement, shall vest in full on the date of such termination of employment, and all stock options shall continue to be exercisable for the remainder of their stated terms. | ||
| (D) | For eighteen (18) months from the date of termination (the “Change in Control Benefits Continuation Period”), the Company shall reimburse the Executive for his cost to participate in COBRA benefits continuation coverage. | ||
| (E) | The Company shall pay Executive the amounts described in Section 6(d). |
(iv) Notwithstanding anything in this Section 6(a) to the contrary, the benefit
reimbursement provided pursuant to Section 6(a)(ii)(D) and Section
6(a)(iii)(D) shall be discontinued prior to the end of the Benefits Continuation Period
or Change in Control Benefits Continuation Period, as applicable, in the event Executive
becomes eligible for benefits from a subsequent employer similar to those benefits Executive
was receiving pursuant to his COBRA benefits continuation, as determined by the Company in
good faith. Executive shall be deemed to have a duty to inform the Company as to the terms
and conditions of any subsequent employment and the corresponding benefits earned from such
employment, and shall provide, or cause to be provided, to the Company in writing correct,
complete and timely information concerning the same.
(v) Notwithstanding anything herein to the contrary, if Executive is a “specified
employee” (within the meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”)) as of his termination of employment, then to the extent necessary to
comply with the requirements of Section 409A of the Code, no payments due Executive under
this Section 6(a) shall be made earlier than the date that is six months following
Executive’s termination of employment, at which time all payments
that would otherwise have been made or provided to Executive within that six month
period shall be paid to Executive in a lump sum.
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(b) Termination for Cause or Voluntary Resignation. In the event Executive’s
employment with the Company is terminated (i) by the Board for Cause (as defined herein), or (ii)
by Executive’s resignation from the Company for any reason other than Good Reason or Disability the
Company agrees to the following:
| (A) | The Company shall pay Executive the amounts described in Section 6(d). | ||
| (B) | The Company shall treat all restricted stock, stock options and other equity awards outstanding under the Executive LTIP or any other Company equity plans in accordance with the terms of the plans or agreements under which such awards were created or maintained. If Executive resigns from the Company for any reason on or after November 10, 2006, all stock options granted under the Executive LTIP will remain exercisable for the remainder of their stated terms. |
(c) Death or Disability. In the event that Executive’s employment with the Company is
terminated as a result of Executive’s death or Disability, the Company agrees to the following:
| (A) | The Company shall pay Executive, or his estate or legal representative, within fifteen (15) days after such termination, a lump-sum payment in an amount equal to 50% of the target Annual Bonus then in effect (excluding the Maximum Bonus but determined without regard to any reduction in such target Annual Bonus constituting Good Reason) pro-rated for the number of days during such year that Executive was employed by the Company. Any stock options granted under the Executive LTIP that have vested will remain exercisable for the remainder of their stated terms. | ||
| (B) | The Company shall treat all stock options under the Executive LTIP or other equity under any other Company plans in accordance with the terms of the plans or agreements under which such awards were created or maintained. | ||
| (C) | The Company shall pay Executive the amounts described in Section 6(d). |
For purposes of this Section 6(c), “Disability” shall mean “disabled” as defined in Section
409A(a)(2)(C) of the Code and the regulations promulgated thereunder. Executive shall cooperate in
all respects with the Company if a question arises as to whether he has become disabled (including,
without limitation, submitting to an examination by a medical doctor or other health care
specialists selected by the Company and reasonably acceptable to Executive
and authorizing such medical doctor or such other health care specialist to discuss Executive’s
condition with the Company).
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(d) In the case of any termination of Executive’s employment with the Company, Executive or
his estate or legal representative shall be entitled to receive from the Company (i) Executive’s
Base Salary through the date of termination to the extent not theretofore paid, (ii) to the extent
not theretofore paid and not otherwise addressed in this Section 6, the amount of any
bonus, incentive compensation, deferred compensation and other compensation earned or accrued by
Executive as of the date of termination under any compensation and benefit plans, programs or
arrangements maintained in force by the Company (for this purpose, Executive’s Annual Bonus, if
any, for any fiscal year shall be deemed to have accrued on the last day of such fiscal year),
(iii) any vacation pay, expense reimbursements and other cash entitlements accrued by Executive, in
accordance with Company policy, as of the date of termination to the extent not theretofore paid,
and (iv) all benefits accrued by Executive under all benefit plans and qualified and nonqualified
retirement, pension, 401(k) and similar plans and arrangements of the Company, in such manner and
at such time as are provided under the terms of such plans and arrangements. In the event
Executive becomes entitled to receive the benefits described in Section 6(a) hereof, such
benefits shall be in lieu of other compensation to which Executive may have been entitled pursuant
to all other agreements and plans, including without limitation, the Severance Plan.
(e) No Other Payments. Except as provided in (a), (b), (c) or (d) above, all of
Executive’s rights to salary, bonuses, employee benefits and other compensation hereunder which
would have accrued or become payable after the termination or expiration of the Employment Period
shall cease upon such termination or expiration, other than those expressly required under
applicable law.
(f) No Mitigation, Et Cetera. In the event of Executive’s termination of employment
for whatever reason or in the event of breach of this Agreement by the Company, Executive shall be
under no obligation to seek other employment or to otherwise mitigate his damages.
(g) Offset. The Company may offset, to the fullest extent of the law, any amounts due
to the Company from the Executive, or advanced or loaned to the Executive by the Company, from any
monies owed to Executive or Executive’s estate by reason of his termination of employment; provided
that in no event will the payment of any amount that constitutes “deferred compensation” under
Section 409A of the Code and the regulations promulgated thereunder be offset.
(h) Limitations. Notwithstanding any other provision of Section 6 to the contrary,
(i) to the extent any benefits provided pursuant to Section 6 during the first six months after
Executive’s termination are not paid pursuant to a qualified plan, a bona fide sick leave or
vacation plan, a disability plan, a death benefit plan or a plan providing medical expense
reimbursements which are non-taxable or a separation pay plan (within the meaning of the
regulations under Section 409A of the Code Section 409A) and Executive is a “specified employee”
within the meaning of Section 409A of the Code, Executive shall pay the cost of such coverage
during the first six months following termination and shall be reimbursed for the cost of such
coverage six months after Executive’s termination.
7. Indemnification.
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(a) The Company agrees that (i) if Executive is made a party, or is threatened to be made a
party, to any threatened or actual action, suit or proceeding, whether civil, criminal,
administrative, investigative, appellate or other (each, a “Proceeding”) by reason of the fact that
he is or was a director, officer, employee, agent, manager, consultant or representative of the
Company or is or was serving at the, request of the Company as a director, officer, member,
employee, agent, manager, consultant or representative of another entity or (ii) if any claim,
demand, request, investigation, dispute, controversy, threat, discovery request or request for
testimony or information (each, a “Claim”) is made, or threatened to be made, that arises out of or
relates to Executive’s service in any of the foregoing capacities, then Executive shall promptly be
indemnified and held harmless by the Company to the fullest extent legally permitted or authorized
by the Company’s certificate of incorporation, bylaws or Board resolutions or, if greater, by the
laws of the State of Delaware, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorney’s fees, judgments, interest, expenses of investigation,
penalties, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
incurred or suffered by the Executive in connection therewith, and such indemnification shall
continue as to Executive even if he has ceased to be a director, member, employee, agent, manager,
consultant or representative of the Company or other entity and shall inure to the benefit of
Executive’s heirs, executors and administrators. The Company shall advance to Executive all costs
and expenses incurred by him in connection with any such Proceeding or Claim within 15 days after
receiving written notice requesting such an advance. Such notice shall include, to the extent
required by applicable law, an undertaking by Executive to repay the amount advanced if he is
ultimately determined not to be entitled to indemnification against such costs and expenses.
(b) Neither the failure of the Company (including the Board, independent legal counsel or
stockholders) to have made a determination in connection with any request for indemnification or
advancement under Section 7(a) that Executive has satisfied any applicable standard of
conduct nor a determination by the Company (including the Board, independent legal counsel or
stockholders) that Executive has not met any applicable standard of conduct, shall create a
presumption that Executive has or has not met an applicable standard of conduct.
8. Gross-up. In the event that any payment or benefit made or provided to or for the
benefit of Executive in connection with this Agreement or his employment with the Company or the
termination thereof (a “Payment”) is determined to be subject to any excise tax (“Excise Tax”)
imposed by Section 4999 of the Code (or any successor to such Section), the Company shall pay to
Executive, prior to the time any Excise Tax is payable with respect to such Payment (through
withholding or otherwise), an additional amount (a “Gross-Up Payment”) which, after the imposition
of all income, employment, excise and other taxes, penalties and interest thereon, is equal to the
sum of (i) the Excise Tax on such Payment plus (ii) any penalty and interest assessments associated
with such Excise Tax. The determination of whether any Payment is subject to an Excise Tax and, if
so, the amount and time of any Gross-Up Payment pursuant to this Section 8 shall be made by
an independent auditor (the “Auditor”) jointly selected by the parties and paid by the Company.
Unless Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United
States public accounting firm that has not, during the two years preceding the date of its
selection, acted in any way on behalf of the Company or any of its
affiliates. If the parties cannot agree on the firm to
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serve as the Auditor, then the parties
shall each select one accounting firm and those two firms shall jointly select the accounting firm
to serve as the Auditor. The parties shall cooperate with each other in connection with any
Proceeding or Claim relating to the existence or amount of any liability for Excise Tax. All
expenses relating to any such Proceeding or Claim (including attorneys’ fees and other expenses
incurred by Executive in connection therewith) shall be paid by the Company promptly upon demand by
Executive, and any such payment shall be subject to a Gross-Up Payment under this Section 8
in the event that Executive is subject to Excise Tax on such payment. This Section 8 shall
apply irrespective of whether a Change of Control has occurred. Any Gross-Up Payment or
reimbursement for expenses relating to a Proceeding or Claim described in this Section 8
shall be made by the end of the calendar year following the calendar year in which the Executive
remits the Excise Tax.
9. Confidential Information.
(a) Executive acknowledges that the information, observations and data (including trade
secrets) obtained by him while employed by the Company concerning the business or affairs of the
Company or any of its affiliates (“Confidential Information”) are the property of the Company or
such affiliate. Therefore, except in the course of Executive’s duties to the Company or as may be
compelled by law or appropriate legal process, Executive agrees that he shall not disclose to any
person or entity or use for his own purposes any Confidential Information or any confidential or
proprietary information of other persons or entities in the possession of the Company and its
affiliates (“Third Party Information”), without the prior written consent of the Board, unless and
to the extent that the Confidential Information or Third Parry Information becomes generally known
to and available for use by the public other than as a result of Executive’s acts or omissions.
Except in the course of Executive’s duties to the Company or as may be compelled by law or
appropriate legal process, Executive will not, during his employment by the Company, or permanently
thereafter, directly or indirectly use, divulge, disseminate, disclose, lecture upon, or publish
any Confidential Information, without having first obtained written permission from the Board to do
so. Executive shall deliver to the Company at the termination or expiration of the Employment
Period, or at any other time the Company may reasonably request, all memoranda, notes, plans,
records, reports, computer files, disks and tapes, printouts and software and other documents and
data (and copies thereof) embodying or relating to Third Party Information, Confidential
Information or the business of the Company, or its affiliates which he may then possess or have
under his control. Notwithstanding the foregoing, the Company hereby waives the right to assert an
“inevitable disclosure” argument in any legal proceeding against Employee after the termination of
his employment.
(b) Executive shall be prohibited from using or disclosing any confidential information or
trade secrets that Executive may have learned through any prior employment. If at any time during
his employment with the Company or any of its affiliates, Executive believes he is being asked to
engage in work that will, or will be likely to, jeopardize any confidentiality, or other
obligations Executive may have to former employers, Executive shall immediately advise the Board so
that Executive’s duties can be modified appropriately. Executive represents and warrants to the
Company that Executive took nothing with him which belonged to any former employer when Executive
left his prior position and that Executive has nothing that contains any information which belongs
to any former employer. If at any time Executive
discovers this is incorrect, Executive shall promptly return any such materials to Executive’s
former employer. The Company does not want any such materials, and Executive shall not be
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permitted to use or refer to any such materials in the performance of Executive’s duties hereunder.
10. Intellectual Property, Inventions and Patents. Executive acknowledges that all
discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods, trade
secrets, designs, analyses, drawings, reports, patent applications, copyrightable work and mask
work (whether or not including any confidential information) and all registrations or applications
related thereto, all other proprietary information and all similar or related information (whether
or not patentable) which may relate to the Company’s or any of its affiliates’ actual or
anticipated business, research and development or existing or future products or services and which
are conceived, developed or made by Executive (whether alone or jointly with others) while employed
by the Company and its affiliates (“Work Product”), belong to the Company or such affiliate.
Executive shall promptly disclose such Work Product to the Board and, at the Company’s expense,
perform all actions reasonably requested by the Board (whether during or after the Employment
Period) to establish and confirm such ownership (including, without limitation, assignments,
consents, powers of attorney and other instruments). Executive acknowledges that all applicable
Work Product shall be deemed to constitute “works made for hire” under the U.S. Copyright Act of
1976, as amended. To the extent any Work Product is not deemed a work made for hire, then
Executive hereby assigns to the Company or such affiliate all right, title and interest in and to
such Work Product, including all related intellectual property rights.
11. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to Executive hereunder, Executive
acknowledges that during the course of his employment with the Company and its affiliates he shall
become familiar with the Company’s trade secrets and with other Confidential Information concerning
the Company and its affiliates and that his services shall be of special, unique and extraordinary
value to the Company and its affiliates, and therefore, Executive agrees that, during the
Employment Period and for one (1) year thereafter (the “Noncompete Period”), he shall not directly
or indirectly own any interest in, manage, control, participate in, consult with, render services
for, be employed in an executive, managerial or administrative capacity by, or in any manner engage
in any company engaged in a business that competes with any businesses of the Company or its
affiliates, as such businesses exist or are in process during the Employment Period or on the date
of the termination or expiration of the Employment Period within any geographical area in which the
Company or its affiliates engage or have definitive plans to engage in such businesses. Nothing
herein shall prohibit Executive from being a passive owner of not more than 2% of the outstanding
stock of any class of a corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation. Notwithstanding the foregoing, the provisions
of this Section 11(a) shall not apply in the case of any material breach of the Company’s
obligations under Section 6 or Section 7 which remains uncured for more than twenty (20) days after
notice is received from Executive of such breach, which such notice shall include a detailed
description of the grounds constituting such breach.
(b) During the Noncompete Period, Executive shall not directly or indirectly through another
person or entity (i) induce or attempt to induce any employee of the Company or any of its
affiliates to leave the employ of the Company or such affiliate, or in any way interfere with
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the
relationship between the Company or any affiliate and any employee thereof, (ii) hire any person
who was an employee of the Company or any affiliate during the last six months of the Employment
Period; or (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee
or other business relation of the Company or any affiliate to cease doing business with the Company
or such affiliate, or in any way interfere with the relationship between any such customer,
supplier, licensee or business relation and the Company or any affiliate (including, without
limitation, making any negative or disparaging statements or communications regarding the Company
or its affiliates).
(c) If, at the time of enforcement of this Section 11, a court shall hold that the
duration, scope or area restrictions stated herein are unreasonable under circumstances then
existing, the parties agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area and that the court shall
be allowed to revise the restrictions contained herein to cover the maximum period, scope and area
permitted by law. Executive acknowledges that the restrictions contained in this Section 11 are
reasonable and that he has reviewed the provisions of this Agreement with his legal counsel.
(d) In the event of the breach or a threatened breath by Executive of any of the provisions of
this Section 11, the Company would suffer irreparable harm, and in addition and
supplementary to other rights and remedies existing in its favor, the Company shall be entitled to
specific performance and/or injunctive or other equitable relief from a court of competent
jurisdiction in order to enforce or prevent any violations of the provisions hereof (without
posting a bond or other security). In addition, in the event of a breach or violation by Executive
of Section 11(a), the Noncompete Period shall be automatically extended by the amount of
time between the initial occurrence of the breach or violation and when such breach or violation
has been duly cured.
12. Executive’s Representations. Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by Executive do not and
shall not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which he is bound which
has not been waived, (ii) Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or entity which has not
been waived, and (iii) on the Effective Date, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges
and represents that he has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and conditions contained
herein.
13. Survival. Sections 5 through 28, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the expiration or termination
of the Employment Period.
14. Notices. Any notice, communication or request provided for in this Agreement
shall be in writing and shall be either personally delivered (with a written acknowledgement of
receipt), sent by nationally recognized overnight courier service (with a written
12
acknowledgement
of receipt by the overnight courier) or mailed by certified or registered mail, return receipt
requested, to the recipient at the address below indicated:
Notices to Executive:
Xxxxx Xxxxx
Orchard Hill
0000 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Orchard Hill
0000 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Notices to the Company:
or such other address or to the attention of such other person as the recipient party shall have
specified by ten (10) days prior written notice to the sending party. Any notice under this
Agreement shall be deemed to have been given when (i) when personally delivered, (ii) two (2) days
after being sent by overnight courier or (iii) three (3) days after mailing by certified or
registered mail.
15. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement or any action in any other jurisdiction, but this
Agreement shall be reformed, construed and enforced in such jurisdiction as if such, invalid,
illegal or unenforceable provision had never been contained herein.
16. Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or representations by or
among the parties, written or oral, which may have related to the subject matter hereof in any way.
For the sake of clarity, except as otherwise specifically provided herein, this Agreement
supersedes the Original Agreement.
17. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
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18. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
19. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the beneficiaries, heirs and representatives of Executive and the successors and assigns
of the Company. The Company shall require any successor (whether direct or indirect, by purchase,
merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise)
to all or a majority of its assets, by agreement in form and substance satisfactory to Executive,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform this Agreement if no such succession had taken place.
Regardless whether such agreement is executed, this Agreement shall be binding upon any successor
of the Company in accordance with the operation of law and such successor shall be deemed the
“Company” for purposes of this Agreement. Executive may not assign his rights (except by will or
the laws of descent and distribution) or delegate his duties or obligations hereunder. Except as
provided by this Section 19, this Agreement is not assignable by any party and no payment
to be made hereunder shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
20. Choice of Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
21. Amendment and Waiver. The provisions of this Agreement may be amended, modified
or waived only with the prior written consent of the Company and Executive, and no course of
conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement (including, without limitation, the Company’s right to
terminate the Employment Period for Cause) shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.
22. Insurance. The Company may, at its discretion, apply for and procure in its own
name and for its own benefit life and/or disability insurance on Executive in any amount or amounts
considered advisable. Executive agrees to cooperate in any medical or other examination, supply
any information and execute and deliver any applications or other instruments in writing as may be
reasonably necessary to obtain and constitute such insurance. Executive hereby represents that he
has no reason to believe that his life is not insurable at rates now prevailing for healthy men of
his age.
23. Indemnification and Reimbursement of Payments on Behalf of Executive. The Company
and its affiliates shall be entitled to deduct or withhold from any amounts owing from the Company
or any of its affiliates to Executive any federal, state, local or foreign withholding taxes,
excise tax, or employment taxes (“Taxes”) imposed with respect to Executive’s compensation or other
payments from the Company or any of its affiliates or Executive’s ownership interest in
14
the Company
(including, without limitation, wages, bonuses, dividends, the receipt or exercise of equity
options and/or the receipt or vesting of restricted equity). In the event the Company or any of
its affiliates does not make such deductions or withholdings at the written request of the
Executive, Executive shall indemnify the Company and its affiliates for any amounts paid with
respect to any such Taxes, together with any interest, penalties and related expenses thereto.
24. Consent to Jurisdiction. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSES OF
ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE
OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT IN COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH 14
(NOTICE) SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO
ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS SECTION 24. EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION,
SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE,
AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
25. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE
PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL),
EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING
TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
26. Corporate Opportunity. During the Employment Period, Executive shall submit to
the Board all business, commercial and investment opportunities or offers presented to Executive
that relate to the business of the Company or its affiliates (“Corporate Opportunities”), if
Executive wishes to accept or pursue, directly or indirectly, such Corporate Opportunities on
Executive’s own behalf. This Section 26 shall not apply to purchases of publicly traded
stock by Executive.
27. Legal Costs. Except as otherwise agreed to by the parties, the Company shall pay
the Executive for costs of litigation or other disputes during Executive’s lifetime including,
without limitation, reasonable attorneys’ fees incurred by Executive in asserting any claims or
defenses under this Agreement, except that Executive shall bear his own costs of such litigation or
disputes (including, without limitation attorneys’ fees) if the court finds in favor of the Company
with respect to any claims or defenses asserted by the Executive.
15
28. Executive’s Cooperation. During the Employment Period and thereafter, Executive
shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with
respect to any internal, investigation or administrative, regulatory or judicial proceeding
involving matters within the scope of Executive’s duties and responsibilities to the Company during
the Employment Period (including, without limitation, Executive being available to the Company upon
reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable
request to give testimony without requiring service of a subpoena or other legal process, and
turning over to the Company all relevant Company documents which are or may come into Executive’s
possession during the Employment Period); provided, however, that any such request by the Company
shall not be unduly burdensome or interfere with Executive’s personal schedule or ability to engage
in gainful employment. In the event the Company requires Executive’s cooperation in accordance
with this Section 28, the Company shall reimburse Executive for reasonable out-of-pocket
expenses (including travel, lodging and meals) incurred by Executive during Executive’s lifetime in
connection with such cooperation, subject to reasonable documentation. In addition, the Company
shall compensate Executive at a rate of $500 per hour for the time in excess of one business day,
per occurrence or event, that Executive reasonably spends complying with his obligations under this
Section after the expiration of the Employment Period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| NRG ENERGY, INC. | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Xxxxxx Xxxxxxxx | ||||||
| Board Chairman | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| Xxxxx X. Xxxxx | ||||||
| President & CEO | ||||||
16
EXHIBIT A
GENERAL RELEASE
GENERAL RELEASE
In consideration of the payments and benefits (the “Severance Payment”) paid or to be paid to
me pursuant to and in accordance with the terms of my Employment Agreement with NRG Energy, Inc.
dated December 4, 2008 (the “Agreement”), on behalf of myself, my heirs, executors, administrators,
successors, and assigns, I hereby fully and forever RELEASE and DISCHARGE NRG ENERGY, INC., its
affiliates and their officers, directors, agents, employees, representatives, successors and
assigns (hereinafter, collectively called the “Company”), from any and all claims and causes of
action arising out of or relating in any way to my employment with the Company, including, but not
limited to, the offer of employment and termination of my employment, and I agree that I will not
in any manner institute, prosecute or pursue any complaints, claims, charges, liabilities, claims
for relief, demands, suits, actions or causes of action against the Company that are covered by
this RELEASE.
Notwithstanding the foregoing, expressly excluded from this RELEASE are any claims or causes
of action which I may have (i) seeking enforcement of my rights under the Agreement, including,
without limitation, Sections 6, 7, 8 and 27 thereof, or any other plan, policy or arrangement of
the Company, (ii) seeking to obtain contribution as permitted by applicable law in the event of the
entry of judgment against me as a result of any act or failure to act for which both I and the
Company are held to be jointly liable, (iii) arising out of or relating in any way to acts or
omissions after the date of this RELEASE or otherwise not covered by this RELEASE, and (iv) which
cannot be waived by law. I shall also retain the right to seek indemnification from the Company,
to the extent permitted under applicable law and Section 7 of the Agreement.
1. I understand and agree that, except as specifically provided above, this RELEASE is a full
and complete waiver of all claims relating to my employment with the Company, including, but not
limited to, claims of wrongful discharge, breach of contract, breach of the covenant of good faith
and fair dealing, violation of public policy, defamation, personal injury and emotional distress,
claims under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991,
the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit
Protection Act of 1990, the Americans With Disabilities Act, the Rehabilitation Act of 1973, as
amended, the Equal Pay Act of 1963, Section 1981 of the Civil Rights Act of 1866, any of the
Delaware State employment, discrimination or wage payment laws, the Fair Labor Standards Act of
1938, as amended, the Family and Medical Leave Act of 1993, and the Employee Retirement Income
Security Act of 1974, as amended, claims arising from any legal restrictions on the Company’s right
to terminate employees (including, without limitation, claims arising under various contract, tort,
public policy or wrongful discharge theories under any federal, state or local law, or under the
federal Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar state
or local law), and any claims for attorney’s fees or costs.
2. I understand that I have received or will receive, regardless of the execution of this
RELEASE, all amounts due to me pursuant to Sections 6(d), 7 and 8 of the Agreement. I further
understand and agree that the Company will not provide me with any additional payments or benefits
under the Agreement (including, without limitation, payments under Section 6(a) of the Agreement)
unless I execute this RELEASE. In consideration of the execution of this
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RELEASE, I will receive additional payments and benefits specified in Section 6(a) of the
Agreement.
3. In addition, and in further consideration of the foregoing, I acknowledge and agree that if
I hereafter discover facts different from or in addition to those which I now know or believe to be
true that this RELEASE shall be and remain effective in all respects notwithstanding such different
or additional facts or the discovery thereof. I understand that this RELEASE does not waive or
release any rights or claims that I may have under the Age Discrimination in Employment Act of
1967, as amended, which arise after the date I sign this RELEASE.
4. As part of my existing and continuing obligation to the Company, I have returned or, within
seven (7) days of my termination will return to the Company all Confidential Information and Third
Party Information (as such terms are defined in the Agreement) in accordance with the terms of the
Agreement. I affirm my obligation to keep all Confidential Information confidential and not to
disclose it to any third party as required by Section 9 of the Agreement.
5. I agree not to disclose, either directly or indirectly, any information whatsoever
regarding (i) any of the terms or the existence of this RELEASE and my benefits under the Agreement
or (ii) any other claim I may have against the Company, to any person or organization, including
but not limited to members of the press and media, present and former employees of the Company,
companies who do business with the Company; or other members of the public. Notwithstanding the
preceding sentence, I may reveal such terms of this RELEASE and the Severance Payment to my spouse,
accountants or attorneys or as are necessary to comply with a request made by the Internal Revenue
Service, as otherwise compelled by a court or agency of competent jurisdiction, as allowed and/or
required by law.
6. This RELEASE shall be governed by the laws of the State of Delaware.
7. This RELEASE contains the entire agreement between the Company and me with respect to any
matters referred to in the RELEASE and shall supersede any all other agreements, whether written or
oral, with respect to such matters. I understand and agree that this RELEASE shall not be deemed
or construed at any time as an admission of liability or wrongdoing by either myself or the
Company. Notwithstanding the foregoing, it is understood and agreed that my termination will be
treated for all purposes as a termination without Cause or for Good Reason under Section 6(a) of
the Agreement and that I shall be entitled to all payments and benefits under the Agreement
consistent with such a termination.
8. If any one or more of the provisions contained in this RELEASE is, for any reason, held to
be unenforceable, that holding will not affect any other provision of this RELEASE, but, with
respect only to the jurisdiction holding the provision to be unenforceable, this RELEASE shall then
be construed as if such unenforceable provision or provisions had never been contained therein.
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9. Before executing this RELEASE, I obtained sufficient information to intelligently exercise
my own judgment about the terms of the RELEASE. The Company has informed me in writing to consult
an attorney before signing this RELEASE, if I wish.
I also understand for a period of fifteen (15) days after I sign this RELEASE, I may revoke
this RELEASE and that the RELEASE will not become effective until fifteen (15) days after I sign
it, and only then if I do not revoke it. In order to revoke this RELEASE, I must deliver, or cause
to be delivered, to Xxxxxx Xxxxxx; VP, Human Resources by First Class mail or facsimile
000-000-0000, by no later than fifteen (15) days after I execute this RELEASE, a letter stating
that I am revoking it.
10. My severance and other termination benefits under the Agreement will be paid in accordance
with the terms of the Agreement. If I choose to revoke this RELEASE within fifteen (15) days after
I sign it, such benefits will not be due and payable, and the RELEASE will have no effect.
11. If I fail to comply with my agreement not to institute, prosecute or pursue any
complaints, claims, charges, liabilities, claims for relief, demands suits or causes of actions
against the Company (except as set forth in the second unnumbered paragraph at the beginning of
this Release above, including, without limitation, any claims or causes of actions I may have as a
result of any acts or omissions that occur after the date of this Release), or if I materially and
willfully fail to comply with the terms of Section 4 and 5 of this RELEASE, I will forfeit the
additional payments and benefits due under the Agreement.
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EMPLOYEE’S ACCEPTANCE OF RELEASE
BEFORE SIGNING MY NAME TO THIS RELEASE, I STATE THAT: I HAVE READ IT; UNDERSTAND IT AND KNOW THAT I
AM GIVING UP IMPORTANT RIGHTS; I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING
IT; AND I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY. EXCEPT FOR THE MATTERS EXPRESSLY STATED IN
THIS RELEASE, THE COMPANY HAS NEITHER MADE ANY REPRESENTATION NOR OFFERED ME ANY INDUCEMENT TO SIGN
THIS RELEASE.
| By: | ||||||
| Xxxxx X. Xxxxx President & CEO |
||||||
| Date: | ||||||
Agreed to and accepted:
By: |
||
| Xxxxxx Xxxxxxxx Board Chairman |
