SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement is made and entered into effective December 1,
1998, by and among Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Cogeneration Corporation of
America ("Cogen") and NRG Energy, Inc. ("NRG").
WHEREAS disputes have arisen between the undersigned parties; and
WHEREAS each undersigned party has determined independently that it is
desirable and beneficial for it or him to settle, compromise and resolve the
disputes in the manner and on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby expressly acknowledged, the undersigned
Xxxxxxx, Xxxxx and NRG agree as follows:
1. Cogen and NRG, for themselves, and for all of their respective
predecessor and successor firms, subsidiaries and affiliates, which as to NRG
includes Northern States Power Company ("NSP"), and for all of their
respective present and former officers, directors, partners, principals,
employees, attorneys, assigns, agents, representatives and anyone claiming to
act on behalf of Cogen and/or NRG (hereinafter referred to collectively as
the "Cogen and NRG Releasors"), remise, release and forever discharge Xxxxxxx
and all and each of his present and former attorneys, agents, assigns,
representatives, family members, heirs, executors and administrators
(hereinafter referred to collectively as the "Xxxxxxx Releasees"), both
individually and in their representative capacities, of and from any and all
actions, causes of action, liabilities, suits, debts, sums of money,
accounts, bonds, bills, covenants, contracts, controversies, agreements,
promises, damages, judgments, claims and demands whatsoever,
state or federal, in law or in equity, whether known or unknown, asserted or
unasserted, suspected or unsuspected, which the Cogen and NRG Releasors, any
or all of them, may now have or hereafter have or claim to have against the
Xxxxxxx Releasees, any or all of them, for, upon, or by reason of any matter,
event, cause or thing arising or which may have arisen at any time up to the
date of this Agreement.
2. Xxxxxxx does for himself and for all of his present and former
attorneys, agents, representatives, family members, heirs, executors,
administrators and anyone acting or claiming to act on his behalf
(hereinafter referred to collectively as the "Xxxxxxx Releasors"), remise,
release and forever discharge Cogen and NRG, and their respective predecessor
and successor firms, subsidiaries and affiliated companies, which as to NRG
includes NSP, all and each of their respective present and former officers,
directors, partners, principals, employees, attorneys, assigns, agents and
representatives, both individually and in their representative capacities
(hereinafter referred to collectively as the "Cogen and NRG Releasees"), of
and from any and all actions, causes of action, liabilities, suits, debts,
sums of money, accounts, bonds, bills, covenants, contracts, controversies,
agreements, promises, damages, judgments, claims and demands whatsoever,
state or federal, in law or in equity, whether known or unknown, asserted or
unasserted, suspected or unsuspected, which the Xxxxxxx Releasors, any or all
of them, may now have or hereafter have or claim to have against the Cogen
and NRG Releasees, any or all of them, for, upon, or by reason of any matter,
event, cause or thing arising or which may have arisen at any time up to the
date of this Agreement. The sole exception to the above release is that it
does not release any claim Xxxxxxx may have for indemnification under
applicable law or Cogen's Bylaws or Articles of Incorporation for a claim
made against
Xxxxxxx based upon action taken by Xxxxxxx in his capacity as an officer,
director, or employee of Cogen.
This release includes, but is not limited to, any and all claims arising
from Xxxxxxx'x employment with Cogen and the termination of that employment,
including claims under the Age Discrimination in Employment Act, the Older
Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964,
the Americans with Disabilities, the Employee Retirement Income Security Act,
the Minnesota Human Rights Act, and any other local, state or federal
discrimination act or ordinance, claims arising out of Minnesota Statute
Section 181.932, et seq., claims for breach of contract, claims for libel or
slander, claims for assault or battery, claims for infliction of emotional
distress whether intentional or negligent, claims for tortious interference
with prospective contractual relations, claims of negligence (including
negligent hiring, negligent supervision and negligent retention), claims that
Xxxxxxx has been unlawfully discharged or in any other respect unfairly
treated during his employment with Cogen and any and all claims in and
arising out of the civil actions referred to in paragraphs 4 and 5 of this
Agreement.
3. It is the intention of the undersigned parties that the releases
contained in Paragraphs 1 and 2 herein shall be effective as a full and final
accord and satisfaction, and as a bar to all actions, causes of action,
obligations, costs, expenses, attorneys' fees, damages, losses, claims,
liabilities and demands of whatsoever nature, character or kind, known or
unknown, suspected or unsuspected. The undersigned parties, hereby
acknowledge that they are aware that they or their attorneys may hereafter
discover claims or facts in addition to or different from those that they now
know or believe to exist with respect to the subject matter of this
Settlement Agreement and Mutual Release but that it is their intention hereby
fully, finally and
forever to settle and release all of the disputes and differences, known or
unknown, suspected or unsuspected, which do now exist, may hereafter exist,
or may heretofore have existed, and without regard to the subsequent
discovery or existence of different or additional facts.
4. The lawsuit styled XXXXXX X. XXXXXXX, XX. VS. NRG ENERGY, INC., et
al., Civil File No. 99-CV-2358, in the United States District Court, District
of Minnesota, Fourth Division (the "Minnesota Action"), shall be dismissed
with prejudice and on the merits, with each party to bear its, his or her own
attorneys' fees, costs and disbursements. Counsel for each of the parties to
the Minnesota Action shall sign and file a joint stipulation for dismissal of
the Minnesota Action promptly after expiration of the rescission period
described in paragraph 18 of this Settlement Agreement and Mutual Release.
5. The lawsuit styled NRG ENERGY, INC. V. XXXXXX X. XXXXXXX, C.A. No.
16731NC, in the Court of Chancery of the State of Delaware, in and for New
Castle County (the "Delaware Action"), shall be dismissed without prejudice
by NRG, with each party to bear its or his own attorneys fees, costs and
disbursements, and NRG hereby covenants and agrees not to xxx Xxxxxxx in the
future to obtain the relief requested in the Delaware Action. Counsel for
NRG in the Delaware Action shall file a Notice of Dismissal of the Delaware
Action promptly after expiration of the rescission period described in
paragraph 18 of this Settlement Agreement and Mutual Release.
6. Xxxxxxx shall receive his current Base Salary, in the amount of
Eighteen Thousand Three Hundred Thirty-Three and Thirty-Three Hundredths
Dollars ($18,333.33) per month, and employee health benefits, as described in
paragraph 7 of Xxxxxxx'x Employment Agreement with Cogen dated March 28,1997
(the "Xxxxxxx Employment Agreement"), through December 31, 1998. Xxxxxxx
shall not be entitled to receive any other compensation,
including compensation in the form of salary, bonus or benefits, from Cogen,
whether under the Xxxxxxx Employment Agreement or otherwise, except as
expressly provided for in this paragraph and in Paragraphs 7 and 10 herein.
Nor shall Xxxxxxx perform any services on behalf of Cogen except as expressly
provided for in this Agreement or as agreed to in writing by Cogen and
Xxxxxxx prior to their performance. Xxxxxxx shall be entitled to receive
notice and continuation of his rights under COBRA, as provided for in the
statute, for continuation of particular insurance benefits.
7. Upon expiration of the rescission period described in paragraph I 8
of this Agreement, Cogen shall pay Xxxxxxx the sum of Four Hundred and Six
Thousand Dollars ($406,000.00) which shall include payment for Xxxxxxx'x
outstanding shares of stock as described in Paragraph 8 of this Agreement.
In addition, upon expiration of the rescission period described in Paragraph
18 of this Agreement, NRG shall pay Xxxxxxx the sum of One Hundred Thirty
Thousand Dollars ($130,000.00). These two payments together constitute the
"Settlement Payments." The Settlement Payments shall be allocated as follows:
PAYABLE BY COGEN:
a. The sum of $82,500 as payment for Xxxxxxx'x outstanding shares of
stock. This sum is not subject to withholding or Form 1099 tax
reporting.
b. The sum of $70,000 as payment for emotional distress, general damages,
and settlement of any and all other claims. This sum is not subject
to withholding but shall be reported on Form 1099.
c. The sum of $253,500 (prior to withholding) as settlement of severance
and any and all claims under the Xxxxxxx Employment Agreement or
arising out of the employment relationship. This sum is subject to
withholding and will be reported on Form W-2.
TOTAL: $406,000
PAYABLE BY NRG:
The sum of $130,000 as payment for emotional distress, general damages, and
settlement of any and all other claims. This sum is not subject to
withholding but will be reported on Form 1099.
Xxxxxxx shall sign all tax withholding and other forms required by Cogen
and NRG under applicable law. Except for items (a) and (b) above, all
amounts paid to Xxxxxxx by Xxxxx under this paragraph are payments on account
of wages and are, therefore, subject to withholding obligations under state
and federal law, and only the net amount after applicable withholdings shall
be paid to Xxxxxxx. If it is determined by any federal or state tax
authority that any amount that may be paid to Xxxxxxx under this Settlement
Agreement but is treated by Cogen and/or NRG as not subject to information
reporting, or treated as a payment other than taxable wages, was in fact
subject to such reporting and/or was taxable wages, and if as a consequence
Cogen and/or NRG is held responsible for the employee's portion of any
penalties, interest or taxes, Xxxxxxx shall immediately upon Cogen and/or
NRG's demand therefor and reasonable proof of Cogen and/or NRG's actual
payment of the same, indemnify and hold Cogen and/or NRG harmless for the
employee's portion of all such penalties, interest and taxes.
8. Xxxxxxx represents and warrants that he is the record and
beneficial owner of five thousand five hundred (5,500) shares of Cogen stock,
that such stock has not been pledged or encumbered in any way, and that he
can sell and convey such stock free and clear of any lien of encumbrance.
Xxxxxxx further represents and warrants that he has no record or beneficial
ownership or interest in any other Cogen stock with the sole exception of
stock options granted to him pursuant to the Xxxxxxx Employment Agreement,
pursuant to which his options to purchase thirty five thousand (35,000)
shares, and only thirty five thousand (35,000) shares, have vested.
Contemporaneously with the payment of the sum provided for in paragraph 7
herein, Xxxxxxx shall deliver and convey legal title to, and all beneficial
interest in, free and clear of any lien or encumbrance, all of the Cogen
stock he owns, that is five thousand five hundred (5,500) shares, to Cogen.
In connection with his conveyance of this Cogen stock, Xxxxxxx shall execute
all documents reasonably requested by Cogen to effect such conveyance,
including stock powers.
9. While NRG owns 20% or more of the outstanding shares of Cogen or
its successors, but in no event for a period of time in excess of 10 years,
Xxxxxxx shall not acquire, directly or indirectly, or otherwise become the
beneficial owner of any common stock of Cogen (or any successor to Cogen by
merger or otherwise) or any security or other right which is convertible,
exchangeable or exercisable, with or without consideration into common stock
of Cogen (or any successor to Cogen by merger or otherwise), with the sole
exception that he may exercise some or all of his vested options to purchase
thirty five thousand (35,000) shares of Cogen stock, provided that he
contemporaneously sells or conveys all legal and beneficial interest in such
stock to Cogen for fair market value. If Cogen does not purchase such stock
within five (5) business days, Xxxxxxx may sell such shares to one or more
third parties, provided that such sale is completed and such stock is sold
within twenty (20) business days of Xxxxxxx'x exercise of his option or
options. For purposes of this Agreement, "fair market value" shall mean the
average, for the ten trading days prior to the date on which Xxxxxxx'x
exercise his options, of the closing sale price of the shares of Cogen stock
(or in the event no sale takes place on any day, the average of the closing
bid and asked quotations for the shares of Cogen stock on such day) on the
National Association of Securities Dealers Automatic Quotation System
("NASDAQ") or any comparable system.
The parties expressly acknowledge and agree that Xxxxxxx shall maintain
the right to exercise his vested options to purchase up to thirty five
thousand (35,000) shares of Cogen stock for ninety (90) calendar days after
December 31, 1998. The parties also expressly acknowledge and agree that
Xxxxxxx'x vested stock options total thirty five thousand (35,000) and that
he will not acquire any further options to purchase Cogen stock pursuant to
any agreement with Cogen, any Cogen stock option plan, or otherwise except as
provided in this paragraph 9.
10. Xxxxxxx agrees to serve as an independent contractor consultant for
Cogen during the period from January 1, 1999 through December 31, 2001. In
this capacity, Xxxxxxx will consult with Cogen, or its representatives, for
up to ten (10) days per calendar year. In consideration for Xxxxxxx serving
as a consultant to Cogen, Cogen shall pay Xxxxxxx Twenty Thousand Dollars
($20,000) upon expiration of the rescission period described in paragraph 18
of this Agreement; Twenty Thousand Dollars ($20,000) on the date which is one
year after the first Twenty Thousand Dollar ($20,000) payment; and Twenty
Thousand Dollars ($20,000) on the date which is two years after the first
Twenty Thousand Dollar ($20,000) payment. If Cogen requires additional
consulting services from Xxxxxxx during this period, Xxxxxxx shall provide
such services as are mutually agreeable in consideration for payments in the
amount of Two Thousand Five Hundred Dollars ($2,500) per day. Xxxxxxx shall
be reimbursed by Cogen for reasonable expenses which he incurs in performing
consulting services under this paragraph. Cogen shall report such payment to
applicable state and federal tax agencies. Xxxxxxx understands that he is
not an employee of Cogen for purposes of providing services under this
paragraph, and that, as such, he is not eligible to have benefits in any
employee health or welfare benefit plan, or any other benefits from Cogen.
11. Cogen and Xxxxxxx will issue a joint statement, in the form
attached hereto as Exhibit A, promptly after expiration of the rescission
period described in paragraph 18 and completion of the filings required by
paragraphs 4 and 5 of this Settlement Agreement and Mutual Release.
12. Xxxxxxx shall have the right, at his sole option, to purchase or
transfer the lease of the Chevrolet Tahoe vehicle presently being used by
Xxxxxxx pursuant to Cogen's lease of the vehicle. If Xxxxxxx elects to
purchase or transfer the lease of the vehicle, he shall advise Cogen in
writing of his decision to do so by January 25,1999. If Xxxxxxx has not
advised Cogen in writing of his decision to purchase or transfer the lease of
the vehicle by January 25, 1999, his right to do so shall expire, he shall
have no further right to possess or use the vehicle, and he shall return the
vehicle and keys to the vehicle to Cogen on or before January 25, 1999.
13. NRG shall contribute a total of Thirty Thousand Dollars ($30,000)
to a bona fide Section 501(c)(3) qualified organization for environmental
education, either in one lump sum or in annual increments of Ten Thousand
Dollars ($10,000) beginning December 31, 1999. Xxxxxxx shall have the right
to determine whether such sum shall be paid as a lump sum or in annual
increments. This 501(c)(3) qualified organization shall be established by
Xxxxxxx and if not, the contribution shall be made to a bona fide 501(c)(3)
qualified organization or charitable organization as determined by the mutual
agreement of the parties.
14. Cogen and NRG agree that their respective directors and officers
will not make any statement to any third party disparaging Xxxxxxx and
Xxxxxxx agrees that he will not make any statement to any third party
disparaging Cogen or NRG, or any of their respective present or former
directors or officers.
15. Cogen, NRG, and Xxxxxxx agree to maintain the terms of this
Settlement Agreement and Mutual Release in confidence and not to disclose
such terms to any third party,
other than their respective attorneys and accountants, and as to Xxxxxxx, his
spouse, except as required by applicable law or regulation.
16. Xxxxxxx will return to Cogen all of its records, correspondence,
and documents in his possession, if any, at the time he signs this Settlement
Agreement and Mutual Release. Cogen acknowledges that Xxxxxxx is not
obligated to return strictly personal files now in his possession that were
at one time stored at Cogen's offices. Xxxxxxx will also return to Cogen all
property of Cogen, including Xxxxxxx'x corporate credit cards and air travel
card, if any, at the time it signs this Agreement. Cogen will return to
Xxxxxxx all of his property in its possession, if any, at the time it signs
this Agreement.
17. Xxxxxxx has been advised by Cogen and NRG that he should consult
with an attorney prior to executing this Agreement, and that he has
twenty-one (21) days from the date on which he received this Agreement to
consider whether or not he wishes to sign it. Xxxxxxx acknowledges that he
has had the opportunity to review this Agreement with his attorney before
signing it, that he has the right to sign this Agreement before the
twenty-one (21) days period expires and that if he so chooses, he does so of
his own free will and not of duress. She further acknowledges that the date
on which he received this Agreement is accurately set forth on the last page
of this Agreement.
18. Xxxxxxx may rescind this Severance Agreement and Release within 15
calendar days of signing it. To be effective, the rescission must be in
writing and delivered to Cogen and NRG in care of Xxxxx X. Xxxxxxxxx, Interim
CEO and President, Cogeneration Corporation of America, Xxx Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, either by hand or by mail
within the fifteen (15) day period. If sent by mail, the rescission must be:
a. Postmarked within the fifteen (15) day period;
b. Properly addressed to Cogen; and
c. Sent by certified mail, return receipt requested.
If the Agreement is rescinded by Xxxxxxx all of its provisions shall
immediately become null and void.
19. Noting in this Settlement Agreement and Mutual Release is intended
to be, nor will be deemed to be, an admission of liability by any party that
it or he has violated any state or federal statute, local ordinance, or
principle of common law, or that it or he has engaged in any wrongdoing.
20. The parties agree that this Agreement will not be assignable by
either party unless other party agrees in writing.
21. In case any one or more of the provisions of this Agreement should
be invalid, illegal, or unenforceable in any respect, the validity, legality,
and enforceability of the remaining provisions contained in this Agreement
will not in any way be affected or unpaired thereby.
22. This Agreement will be construed and intend in accordance with the
laws of the State of Minnesota.
23. Each party to this Agreement acknowledges that this Agreement was
the result of mediation pursuant to the Minnesota Civil Mediation Act. Each
party specifically acknowledges and agrees that this Agreement is binding
upon all parties and that the parties were advised by the mediator that (a)
the mediator has no duty to protect the parties' interests or provide them
with information about their legal rights; (b) signing a mediated settlement
agreement may adversely affect the parties' legal rights; and (c) the parties
should consult an attorney before signing a mediated settlement agreement if
they are uncertain of their rights.
24. This Agreement contains the entire understanding between Cogen and
NRG on the one hand, the Xxxxxxx on the other hand, and supersedes all oral
agreements and negotiations between the parties on this subject. Any
amendments, modifications or waivers of the provisions of this Agreement
shall be valid only when they have been reduced to writing and duly signed by
the parties. The terms of this Paragraph shall not be deemed to have been
waived by oral agreement, course of performance or by any other means other
than a written agreement expressly providing for such waiver.
25. No breach of any provision hereof can be waived by any undersigned
party unless in writing. Waiver of any one breach or alleged breach by an
undersigned party shall not be deemed to be a waiver of any other breach of
the same or any other provision hereof.
26. Xxxxxxx and Cogen acknowledge that Exhibit B hereto contains a list
of projects known by Xxxxxxx to be projects which Cogen is developing as of
December 31, 1998. This is the list of projects referred to in Paragraph 15
of the Xxxxxxx Employment Agreement, the provisions of which shall survive,
notwithstanding any provision of this Settlement Agreement and Mutual Release.
27. Nothing contained in this Settlement Agreement and Mutual Release
shall be construed to release any party hereto or any other person with
respect to the covenants, undertakings, and agreements of such party
contained in this document.
28. Each of the undersigned and its and his counsel has reviewed and
revised this Settlement Agreement and Mutual Release, and the rule of
construction that any ambiguities are to be resolved against the drafting
party shall not apply to the interpretation of these documents.
29. Each of the undersigned parties acknowledges and represents that it
and he has been represented by counsel in connection with its and his
consideration and execution of this Settlement Agreement and Mutual Release.
Each undersigned party further represents and declares that in executing this
document it or he has relied solely upon its or his own judgment, belief and
knowledge, and the advice and recommendation of its or his own independently
selected counsel, concerning the nature, extent and duration of its or his
rights and claims, and that it or he has not been influenced to any extent
whatsoever in executing this document, or the exhibits hereto, by any
representations or statements except those expressly contained or referred to
herein.
30. This Settlement Agreement may be executed in counterparts, each of
which shall be deemed an original and shall be deemed duly executed upon the
signing of the counterparts by the parties.
COGENERATIN CORPORATION OF AMERICA
Date Signed: 1/18/99 By: /s/ Xxxxx Xxxxxxxxx
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Its President and CEO
---------------------------------
NRG ENERGY
Date Signed: 1/19/99 By: Xxxxx X. Xxxxxx
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Its Vice President & General Counsel
---------------------------------
XXXXXX X. XXXXXXX, XX.
Date Received: 1/13/99 By: Xxxxxx X. Xxxxxxx, Xx.
---------- --------------------------------------
Date Signed: 1/13/99 Its
---------- ---------------------------------
[COGEN AMERICA LETTERHEAD]
CogenAmerica and Xxxxxx X. Xxxxxxx, Xx., its Chief Executive Officer,
announced today that they have agree upon terms under which Xx. Xxxxxxx will
step down as President and CEO and provide consulting services to the
Company. The Company and NRG Energy, Inc., owner of 45.4% of the Company's
stock, had previously announced that Xx. Xxxxxxx'x employment had been
terminated for expenditures incurred in connection with the solicitation of
proxies on behalf of the Company without authorization from the Company's
Board of Directors. After an investigation by the Company's Board of
Directors, it was determined that these expenditures were approved by the
Independent Directors Committee and were within Xx. Xxxxxxx'x authority as
established by the Board of Directors. Further, the Company acknowledged that
any media accounts accusing Xx. Xxxxxxx of mismanagement were inaccurate.
Xxxxx Xxxxxxxxx, interim President and CEO of the Company, said "Xxx
Xxxxxxx and CogenAmerica have reached an amicable resolution of all issues
between them. Xx. Xxxxxxx acted within the authority bestowed on him by the
Company's Board of Directors. Xxx has agreed to remain a consultant to the
Company in the transition to a new CEO, and we are glad to have his help."
Xxxxx Xxxxxxxx, Chairman, CEO and President of NRG Energy also stated
that: "We are pleased that our investigation has shown that Xxx Xxxxxxx'x
actions were authorized, and that his matter has been resolved to the
satisfaction of all concerned."
In a joint statement, Xx. Xxxxxxx said "I am proud of my accomplishments at
CogenAmerica, and will continue to assist the Company in achieving a smooth
transition to new
leadership. I am especially pleased that CogenAmerica, NRG Energy and I
could rise above our differences and resolve our differences quickly and
amicably."
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THIS NEWS
RELEASE CONTAINS FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A
OF THE SECURITIES ACT OF 1933 AND SECTION 21E OF THE SECURITIES EXCHANGE ACT
OF 1934 THAT INVOLVE RISKS AND UNCERTAINTIES, INCLUDING THE RISK THAT PROJECT
DEVELOPMENT EFFORTS WILL NOT RESULT IN THE ADDITION OF NEW PROJECTS, THE RISK
THAT THE ACTUAL OPERATING RESULTS OF ANY PROJECT OR OF CGCA WILL NOT EQUAL OR
EXCEED THE RESULTS EXPECTED, AND OTHER RISKS DETAILED FROM TIME TO TIME IN
THE COMPANY'S SEC REPORTS, INCLUDING THE REPORT ON FORM 10-K FOR THE YEAR
ENDED DECEMBER 31, 1997.
EXHIBIT NO.
A
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