EXHIBIT 10.1
EXECUTION COPY
EMPLOYMENT AGREEMENT
Between
NRG Energy, Inc.
and
Xxxxx X. Xxxxx
THIS AGREEMENT is made as of November 10, 2003, between NRG
Energy, Inc. (the "Company"), and Xxxxx X. Xxxxx ("Executive").
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 employ Executive, and
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement for the period beginning on the later of
(i) December 1, 2003, or (ii) the date the bankruptcy court approves this
Agreement (the "Commencement Date") and ending as provided in Section 5 or 6
hereof (the "Employment Period"). The Company shall use its best efforts to
promptly obtain bankruptcy court approval of this Agreement. This Agreement
shall be void ab initio and of no force and effect if the Commencement Date does
not occur on or before January 1, 2004.
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 and shall
support and cooperate with the Company's efforts to expand its businesses and
operate profitably and in conformity with the business and strategic plans
approved 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 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) During the period beginning on the Commencement Date and
ending on December 31, 2004, Executive's annual base salary shall be $875,000.
For the portion of the Employment Period beginning on January 1, 2005 and for
periods thereafter, the Executive's annual base salary shall be reviewed and
determined by the Board (such initial annual base salary and the annual base
salary as determined and adjusted 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. During the period beginning on the Commencement Date and ending
December 31, 2003, the Base Salary shall be pro rated on an annualized basis.
For purposes of this Agreement, the Base Salary shall not include any other type
of compensation or benefit paid or payable to the Executive. Notwithstanding
anything in this Agreement to the contrary, any decrease in Executive's then
Base Salary shall be deemed Good Reason.
(b) Bonuses and Incentive Compensation.
(i) Signing Bonus. In addition to the Base
Salary, on the Commencement Date the Company shall pay Executive a
one-time signing bonus of $1.75 million dollars (the "Signing Bonus")
payable in a single lump-sum cash payment; provided, however, that
except as set forth under Section 5 below, Executive agrees to
reimburse the Company, on a pro-rata basis (based on the ratio of (x)
the number of days in the period beginning on the date of Executive's
termination of employment and ending on the first anniversary of the
Commencement Date to (y) 365), if prior to one year from Executive's
Commencement Date he (A) terminates his employment with the Company
other than for "Good Reason" or following a "Change of Control" (as
defined herein), or (B) is terminated by the Board for "Cause" (as
defined herein).
(ii) Annual Bonus. Beginning for fiscal year 2004
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"). For the Company's fiscal year 2004
only, Executive shall receive an
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Annual Bonus of not less than 75% of his Base Salary. 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 April 15 of the subsequent fiscal
year.
(iii) Stretch Bonus. Beginning for fiscal year
2004 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 "stretch bonus" in an amount up to, but not exceeding, 50% of
Executive's then Base Salary (the "Stretch Bonus"). The Company shall
pay the Stretch 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 April 15 of the subsequent fiscal
year.
(iv) Long Term Incentive. The Company shall
provide Executive with a combination of restricted stock or units
("restricted stock") and stock options (the "Executive LTIP") to be
issued to Executive upon the Company's emergence from bankruptcy
protection under Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code"). The aggregate value of the grant under the
Executive LTIP shall be $12.5 million, which is currently approximately
0.5% of the equity to be distributed pursuant to the Company's Plan of
Reorganization under Chapter 11 of the Bankruptcy Code (the "Plan").
One-third of the grant under the Executive LTIP will be issued in
restricted stock and the balance shall be issued in stock options.
It is currently contemplated that the Executive shall
receive 166,667 shares of restricted stock valued at $25 per share and
602,555 stock options valued at $13.83 per share. The exact number of
restricted stock and stock options awarded will be determined based on
the equity value reflected in the final Disclosure Statement to the
Plan of Reorganization; provided, however, that regardless of the
actual number of restricted stock or stock options granted to the
Executive, the aggregate value of such restricted stock and stock
options shall be $12.5 million. The stock options shall have a ten-year
term (subject to early termination, upon termination for Cause or
resignation without Good Reason prior to the third anniversary of the
Commencement Date) and an exercise price equal to the per share equity
value reflected in such final Disclosure Statement (currently $25 per
share). The Company shall reserve a sufficient number of shares of
common stock for issuance upon exercise of the stock options to be
granted hereunder, and any such stock options granted as part of the
Executive LTIP shall be duly and validly authorized by a subset of the
Company's board of directors compromised solely of two or more "outside
directors" (as such term is defined in Treasury Regulations Section
1.162-27(e) and ratified by the Company's full board of directors.
The restricted stock granted under the Executive LTIP
shall be entitled to participate currently in dividends and shall vest
100% on the third anniversary of the Executive's Commencement Date. The
stock options shall vest in three equal installments on each of first
three anniversaries of the Executive's Commencement Date.
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Notwithstanding anything above to the contrary, all grants made under
the Executive LTIP will become 100% vested upon a "Change of Control"
(as defined herein).
The specific terms of the restricted stock and the
stock options granted under the LTIP (including, without limitation,
customary anti-dilution and other provisions) will be reflected in
separate stock option and restricted stock agreements that will be
negotiated by Executive and the Company in good faith prior to the
Commencement Date. Such agreements shall provide that, if the Company's
common stock becomes registered under the Securities Exchange Act of
1934, as amended, the Company shall take such steps as are reasonably
required so that any shares awarded to the Executive under the
Executive LTIP shall, as soon as practicable after the award or awards
of such shares, be covered by a registration statement on Form S-8 or a
successor form and any other appropriate forms determined by the
parties. In the event that the Executive and Company cannot mutually
agree to the terms of both the stock option agreement and the
restricted stock agreement as of the Commencement Date, either the
Company or the Executive shall have the right to declare that this
Agreement shall be void and shall not take effect.
(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. The Company will promptly reimburse Executive for reasonable expenses
incurred for tax return preparation, tax advice, financial planning and legal
expenses incurred in connection with negotiating this Agreement and the other
agreements referred to herein.
(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 through the continuation of the term life insurance
provided to Executive by his former employer (other than adjustable
rate life insurance) immediately prior to the Executive's employment
with the Company;
(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;
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(v) coverage under the Company's director and
officer liability insurance policy; and
(vi) reasonable moving and relocation expenses.
Notwithstanding anything in this Agreement to the contrary, if the benefits
provided to Executive under Section 3(d)(i), (iv) (v) or (vi) are materially
reduced or benefits provided to Executive under Section 3(d)(ii) or (iii) are
reduced at all, such reduction shall be deemed "Good Reason."
(e) During the period commencing on the Executive's
Commencement Date and ending June 30, 2004, the Company shall reimburse
Executive (and gross-up Executive for any income taxes incurred by Executive as
a result of such reimbursement) for all reasonable expenses incurred by him in
connection with commuting to Minneapolis, Minnesota from his permanent residence
in Lawrenceville, New Jersey up to one round-trip each week (but not in excess
of the amount of a full fare economy class round-trip ticket), (ii) leasing an
apartment in Minneapolis, Minnesota, and (iii) reasonable transportation
expenses while in Minneapolis Minnesota. .
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. Certain Early Terminations of Agreement. Notwithstanding
anything in this Agreement to the contrary, in the event that on or prior to
June 30, 2004, the effective date of the Company's Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code (the "Effective Date") has not
occurred, the Executive may elect to unilaterally terminate the Agreement, and
the Company agrees to pay Executive $3.5 million (in a prompt lump-sum cash
payment), provided that Executive (a) notifies the Board by July 31, 2004, in
writing, of Executive's decision to terminate the Agreement pursuant to this
Section 5 and (b) executes and delivers the Release substantially in the form
attached hereto as Exhibit A. However, in the event that Executive elects to
terminate this Agreement pursuant to this Section 5, Executive shall remain
entitled to the payments and benefits set forth in Section 7(d) and shall not
have any obligation to repay any portion of the Signing Bonus set forth in
Section 3(b)(1). Executive shall also be entitled to elect to receive all of the
benefits specified in this Section 5 and in Section 7(d) if the Company shall
terminate his employment without Cause or he shall terminate such employment for
Good Reason prior to July 31, 2004, and prior to the Effective Date. For
avoidance of doubt, Executive acknowledges that by electing to receive benefits
under this Section 5 Executive shall relinquish all benefits payable to him
under this Agreement (other than benefits set forth under Section 7(d)),
including, without limitation, any rights or benefit associated with any
non-vested restricted stock and stock options under the Executive LTIP.
6. Termination. The Employment Period shall end on the third
anniversary of the Commencement Date, provided, however, that the Employment
Period shall be automatically renewed for successive one-year terms thereafter
on the same terms and conditions set forth
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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 herein), death or Disability (as defined herein) and (ii) the Employment
Period may be terminated by the Company at any time prior to such date for Cause
(as defined herein) 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.
7. Severance.
(a) Termination Without Cause or for Good Reason. In the event
of Executive's termination of employment with the Company (i) by the Company
without "Cause" (as defined herein), (ii) by Executive for "Good Reason" (as
defined herein) or (iii) if the Company notifies Executive pursuant to Section 6
that it has elected not to renew this Agreement after the initial three-year
term or any subsequent one-year term, Executive shall be entitled to the
benefits set forth below in this Section 7(a). As a condition to the payment of
any severance benefits or any other benefits to which Executive is not
absolutely entitled as a matter of law, the Executive shall execute and deliver
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 in a prompt
lump-sum cash payment 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 in a prompt
lump-sum payment 50% of target Annual Bonus
(75% of his target Annual Bonus for fiscal
year 2004 only) then in effect (excluding
the Stretch 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.
(C) All restricted stock, stock options and
other equity awards granted under the
Executive LTIP, 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 six (6) months from the date of
termination, the Company shall arrange to
provide Executive and his dependents, at the
Company's cost, medical and dental coverage
providing substantially similar benefits to
those which Executive and his dependents
were receiving immediately prior to such
date, and
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additionally, the Company shall pay
Executive, in a prompt lump-sum payment, an
amount equal to the Company's monthly COBRA
rate for family coverage then in effect
times eighteen (18).
(E) The Company shall pay Executive the amounts
described in Section 7(d).
(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 (as defined herein) the
Company agrees to the following:
(A) The Company shall pay Executive the amounts
described in Section 7(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 the third
anniversary of the Commencement Date, 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 in a prompt
lump-sum payment 50% of target Annual Bonus
(75% of his target Annual Bonus for fiscal
year 2004 only) then in effect (excluding
the Stretch 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) If the Executive is terminated as a result
of his Death or Disability prior to the
third anniversary of his Commencement Date,
his "restricted stock" (as defined above)
shall vest on a pro-rata basis (based on the
ratio of (x) the number of complete months
beginning on the Commencement Date and
ending on the date of Executive's
termination of employment to (y) thirty-six
(36)).
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(C) 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.
(D) The Company shall pay Executive the amounts
described in Section 7(d).
(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, 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, 401k 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.
(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 (such as COBRA).
(f) No Mitigation, No Offset. In the event of Executive's
termination of employment for whatever reason, Executive shall be under no
obligation to seek other employment, and there shall be no offset against
amounts due him under this Agreement or otherwise on account of any remuneration
attributable to any subsequent employment or claims asserted by the Company or
any affiliate, provided that this provision shall not apply with respect to any
amounts that Executive owes the Company or any affiliate on account of any loan,
advance or other payment, in respect of any of which Executive is obligated to
make repayment to the Company or any affiliate of the Company.
(g) Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) "Cause" shall mean one or more of the
following:
(A) the conviction of, or an agreement to a plea
of nolo contendere to, any felony or other
crime involving moral turpitude;
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(B) Executive's willful and continuing refusal
to substantially perform duties as
reasonably directed by the Board under this
or any other agreement (after receipt of
written notice from the Board setting forth
such duties and responsibilities to be
performed); or
(C) in carrying out his duties, Executive
engages in conduct that constitutes willful
gross neglect or willful gross misconduct
which, in either case, results in
demonstrable harm to the business,
operations, prospects or reputation of the
Company.
(D) any other material breach of Section 12 or
27 of this Agreement which is not cured to
the Board's reasonable satisfaction within
15 days after written notice thereof to
Executive.
For purpose of this Agreement, there shall be no
termination for "Cause" pursuant to subsection (A) through (D) above unless a
written notice, containing a detailed description of the grounds constituting
Cause hereunder, is delivered to Executive stating the basis for the termination
and Executive is given twenty (20) business days to cure fully the neglect or
conduct that is the basis of such claim, and if he fails to cure fully such
neglect or misconduct within such twenty (20) business day period, he has an
opportunity to be heard before the full Board and, after such hearing, there is
a vote of three-quarters of the Board to terminate Executive for Cause.
(ii) "Change of Control" shall mean the first to
occur of any of the following events:
(A) Any "person" (as that term is used in
Section 13 and 14(d)(2) of the Securities
Exchange Act of 1934 ("Exchange Act"))
becomes the beneficial owner (as that term
is used in Section 13(d) of the Exchange
Act), directly or indirectly, of fifty
percent (50%) or more of the Company's
capital stock entitled to vote in the
election of directors;
(B) Persons who on the Commencement Date
constitute the Board (the "Incumbent
Directors") cease for any reason, including
without limitation, as a result of a tender
offer, proxy contest, merger or similar
transaction, to constitute at least a
majority thereof, provided that any person
becoming a director of the Company
subsequent to the Commencement Date shall be
considered an Incumbent Director if such
person's election or nomination for election
was approved by a vote of at least
two-thirds (2/3) of the Incumbent Directors;
but provided further, that any such person
whose initial assumption of office is in
connection with an actual or threatened
election contest relating to the election of
members of the Board or other actual or
threatened solicitation of proxies or
consents by or on behalf of a "person" (as
defined in Section 13(d)
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and 14(d) of the Exchange Act) other than
the Board, including by reason of agreement
intended to avoid or settle any such actual
or threatened contest or solicitation, shall
not be considered an Incumbent Director;
(C) Consummation of a reorganization, merger or
consolidation or sale or other disposition
of all or substantially all of the assets of
the Company (a "Business Combination"), in
each case, unless, following such Business
Combination, all or substantially all of the
individuals and entities who were the
beneficial owners of outstanding voting
securities of the Company immediately prior
to such Business Combination beneficially
own, directly or indirectly, more than 50%
of the combined voting power of the then
outstanding voting securities entitled to
vote generally in the election of directors,
as the case may be, of the company resulting
from such Business Combination (including,
without limitation, a company which, as a
result of such transaction, owns the Company
or all or substantially all of the Company's
assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately
prior to such Business Combination, of the
outstanding voting securities of the
Company; or
(D) The shareholders of the Company approve any
plan or proposal for the liquidation or
dissolution of the Company.
(iii) "Disability" shall mean Executive's
inability to perform the essential duties, responsibilities and
functions of his position with the Company and its affiliates as a
result of any mental or physical disability or incapacity even with
reasonable accommodations of such disability or incapacity, provided by
the Company and its affiliates, or if providing such accommodations
would be unreasonable, for a period of six consecutive months.
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).
(iv) "Good Reason" shall mean the Executive's
resignation from employment with the Company prior to the end of the
Employment Period as a result of one or more of the following reasons:
(A) the Company reduces the amount of his then
current Base Salary or the target for his
Annual Bonus,
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(B) a material reduction in Executive's
benefits, provided that if the benefits
provided Executive under Section 3(d)(ii) or
(iii) are reduced at all, such reduction
shall be deemed "Good Reason",
(C) a material diminution in Executive's title,
authority, duties or responsibilities or the
assignment of duties to Executive which are
materially inconsistent with his position,
(D) a change in reporting structure of the
Company where Executive is required to
report to someone other than the Board,
(E) the failure of the Company to obtain in
writing the obligation to perform this
Agreement by any successor to the Company or
a purchaser of all or substantially all of
the assets of the Company within 15 days
after a merger, consolidation, sale or
similar transaction,
(F) the failure to elect Executive to the Board
within 30 days of the Effective Date or to
reelect Executive to the Board for each
subsequent term during the Employment
Period, or
(G) the failure of the Company to grant
Executive the Executive LTIP within 10 days
after the Effective Date.
For purposes of this Agreement, Executive is not
entitled to assert that his termination is for Good Reason unless Executive
gives the Board written notice of the event or events which are the basis for
such claim within ninety (90) days after the event or events occur, describing
such claim in reasonably sufficient detail to allow the Board to address the
event or events and a period of not less than twenty (20) business days to cure
or fully remedy the alleged condition.
8. Indemnification.
(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
Minnesota, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorney's fees, judgments, interest, expenses
of
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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
8(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.
9. 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 9 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
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 9 in
the event that Executive is subject to Excise Tax on such payment. This Section
9 shall apply irrespective of whether a Change of Control has occurred.
10. Confidential Information.
(a) Executive acknowledges that the information, observations
and data (including trade secrets) obtained by him while employed by the Company
concerning the
12
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 Party 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.
(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 permitted to use or refer to any such materials in the performance
of Executive's duties hereunder.
11. Intellectual Property, Inventions and Patents.
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
13
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.
In accordance with Minnesota Statutes Section 181.78,
Executive is hereby advised that this paragraph 9 regarding the
Company's and its affiliates' ownership of Work Product does not apply
to any invention for which no equipment, supplies, facilities or trade
secret information of the Company or any affiliate was used and which
was developed entirely on Executive's own time, unless (i) the
invention relates to the business of the Company or any affiliate or to
the Company's or any affiliate's actual or demonstrably anticipated
research or development or (ii) the invention results from any work
performed by Executive for the Company or any affiliate.
12. 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 the business of wholesale power generation
which competes with the 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 12(a) shall not
apply in the case of termination of Executive's employment pursuant to Section 5
of this Agreement, nor shall such provision apply following any material breach
of the Company's obligations under Section 7 or Section 8 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 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,
14
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 12, 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 12 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 breach by
Executive of any of the provisions of this Section 12, 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 12(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.
13. 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 Commencement 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.
14. Survival. Sections 5 through 29, inclusive, shall survive
and continue in full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
15. 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 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:
15
Notices to Executive:
The Address on File with the Company
Notices to the Company:
Chairman, Board of Directors
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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,
16
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 20, 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.
21. 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 Minnesota, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Minnesota or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Minnesota.
22. 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.
23. 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.
24. 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 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.
17
25. Consent to Jurisdiction. EACH OF THE PARTIES IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE EIGHTH CIRCUIT LOCATED IN MINNESOTA, 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 BY U.S.
REGISTERED MAIL TO SUCH PARTY'S RESPECTIVE ADDRESS SET FORTH ABOVE 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 25. 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 EIGHTH CIRCUIT LOCATED IN
MINNESOTA, 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.
26. 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.
27. 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
power companies ("Corporate Opportunities"), if Executive wishes to accept or
pursue, directly or indirectly, such Corporate Opportunities on Executive's own
behalf. This Section 27 shall not apply to purchases of publicly traded stock by
Executive.
28. Legal Costs. Except as otherwise agreed to by the parties,
the Company shall pay the Executive for costs of litigation or other disputes
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 (or arbitrator) finds in favor of the
Company with respect to any claims or defenses asserted by the Executive.
29. Executive's Cooperation. During the Employment Period and
thereafter, Executive shall cooperate with the Company and its affiliates, upon
the Company's reasonable
18
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 29, the Company shall
reimburse Executive for reasonable out-of-pocket expenses (including travel,
lodging and meals) incurred by Executive 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.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
NRG ENERGY, INC.
By: __________________________________
Its: _________________________________
______________________________________
XXXXX XXXXX
20
EXHIBIT A
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 _____, 2003 (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 5, 7, 8, 9 and 28
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 8 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 Minnesota
State employment 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, and 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).
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 7(d), 8
and 9 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 5 or Section 7(a) of the
Agreement ) unless I execute this RELEASE. In consideration of the execution of
this RELEASE, I will receive additional payments and benefits specified in
[Section 5/Section 7(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
21
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 10 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 Minnesota.
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/for Good
Reason/under Section 5] under 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.
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 [INSERT
TITLE] at NRG Energy, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx,
Xxxxxxxxx, 00000, by First Class mail or facsimile [INSERT NUMBER],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 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. A failure to comply with the terms of this RELEASE (except as set forth
below), including, but not limited to, 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
22
(except as set forth in paragraph 2 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 a material and willful failure to
comply with the terms of Section 4 and 5 of this RELEASE will, result in my
forfeiture of the additional payments and benefits due under the Agreement.
EMPLOYEE'S ACCEPTANCE OF RELEASE
BEFORE SIGNING MY NAME TO THIS RELEASE, I STATE THAT: I HAVE READ IT; I
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 Xxxxx
Date: ________________________________
Agreed to and accepted:
NRG ENERGY, INC.
By: ______________________________
Name:
Title:
23
