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EXHIBIT 10.17
NRG ENERGY, INC.
AGREEMENT OF EMPLOYMENT
THIS AGREEMENT is entered into as of the 15th day of April, 1998 by and
between NRG Energy, Inc. ("Company"), a Delaware corporation, and James J.
Bender ("Employee").
WHEREAS:
A. Employee desires to continue being employed by Company as its "Vice
President and General Counsel."
B. Employee and Company recognize and acknowledge that Employee's executive
responsibilities give Employee knowledge of substantially all aspects of the
Company's operations, including its business plans and strategies, current and
contemplated generation projects and ventures, customers, etc., which
information could seriously harm the Company if provided to a competitor.
Likewise, Employee's responsibilities allow Employee to develop business
relationships with affiliates, customers, suppliers and other Company employees
that, if used on behalf of a competitor, could seriously harm the Company.
C. Employee and Company recognize and acknowledge the Company's need to
protect its confidential and proprietary information as well as its business
relationships and goodwill.
D. In exchange for Employee's agreement not to compete with Company and
not to reveal Company's confidential information as set forth in this Agreement,
Company has agreed to the severance arrangement described below, which
consideration Employee agrees is full and adequate consideration for this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, Employee and Company, intending to be legally bound, agree as
follows:
1. EMPLOYMENT.
(a) Position and Duties. Company agrees to employ Employee as
its "Vice President and General Counsel," with such duties as may be
determined by Company from time to time. Employee shall perform these
duties subject to the direction and supervision of the Chief Executive
Officer. Subject to the provisions of subparagraph (c) of this
paragraph, the Company reserves the right to reassign Employee to
another position within the Company at its discretion and Employee
acknowledges that the provisions of paragraph
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2 below apply to any reassigned position. Employee accepts such
employment and agrees to devote his or her full time and skills to the
conduct of Company's business, performing to the best of Employee's
abilities such duties as may be reasonably requested by Company.
Employee agrees to serve Company diligently and faithfully so as to
advance Company's best interests and agrees to not take any action in
conflict with Company's interests.
(b) Term. This Agreement shall be effective April 15th, 1998
and shall continue thereafter for a rolling three year period unless
either party gives written notice to the other in advance of any annual
anniversary date of this Agreement (which shall be April 15th of each
year) that the term shall expire two years from such annual anniversary
date.
(c) Termination. During the term of the Agreement, Company may
terminate Employee's employment due to Employee's death or Disability
or for Cause and Employee may voluntarily resign his or her employment
with or without Good Cause. For purposes of this Agreement, (i) "Cause"
means theft, or sexual harassment, or a material violation of NRG
corporate policy (including any NRG Code of Conduct which may be
adopted), as reasonably applied, constituting gross misconduct, (ii)
"Disability" means a disability that qualifies the Employee for
disability pension benefits under the Northern State Power Company
Pension Plan and (iii) resign with "Good Cause" means resigning within
3 months of a material change or reduction in Employee's job
responsibilities with the Company or resigning as a result of a
material breach by the Company of the compensation or benefit terms of
this Agreement, provided that Employee has given Company written notice
of, and a reasonable opportunity to cure, such breach. If Employee's
employment is terminated due to Employee's death or Disability or for
Cause or if Employee voluntarily resigns without Good Cause, Company
shall pay Employee's base salary (but not incentives) and employee
benefits through the date of termination or resignation and Company
shall have no further obligations under this Agreement. If during the
term of this Agreement Company terminates Employee's employment for any
reason other than death, Disability or Cause, or if Employee
voluntarily resigns for Good Cause, Company shall continue to pay
Employee amounts equal to Employee's then current total compensation,
including base pay, anticipated incentives and all employee benefits
for a period of three years following the date of termination or
resignation, as severance. Incentives shall include awards under the
NRG Officer Equity Plan and the Annual Incentive Plan, by whatever
name, and any other incentive plans which are applicable. Company shall
provide Employee with incentives in amounts equal to the target amounts
provided in Employee's incentive plans in effect on the date of
Employee's termination or resignation as if Employee's employment
continued, notwithstanding any requirements of active employment which
may be contained in the Company's incentive plans, and as of the end of
the three year period following the date of termination or resignation
(i) Employee shall be deemed to be fully vested under all such
incentive plans, notwithstanding any vesting requirements which may be
contained in such plans, and (ii) for purposes of all incentive plans,
Employee shall be treated as if Employee had retired from the Company
as of end of such three year period, notwithstanding Employee's
eligibility for retirement.
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(d) Compensation and Benefits. Whether or not Company
reassigns employee pursuant to paragraph 1(a), Company shall pay
Employee such base salary and incentives as may be separately agreed
upon from time to time, but not less than the rates for salary and
incentives in effect on the date of this Agreement, and shall provide
such vacation, holiday, medical and other benefits as are provided by
Company to its other executive officers. The benefits provided by
Company to its employees are subject to change from time to time at the
discretion of Company with or without prior notice. With respect to
incentives, if Company reassigns Employee pursuant to paragraph 1(a),
Company shall provide Employee with incentives in amounts equal to the
target amounts provided in Employee's incentive packages in effect
immediately prior to such reassignment. Incentives shall include awards
under the NRG Officer Equity Plan and the Annual Incentive Plan, by
whatever name, and any other incentive plans which are applicable.
2. NON-COMPETITION.
(a) Employee understands and agrees that, in addition to
Employee's below-described exposure to Company's Confidential
Information or Trade Secrets, Employee may, in his or her capacity as
an employee, at times meet with Company's customers and suppliers, and
that as a consequence of using and associating with Company's name,
goodwill, and professional reputation, Employee will be in a position
to develop personal and professional relationships with Company's past,
current, and prospective customers and suppliers. Employee further
acknowledges that during the course and as a result of employment by
Company, Employee may be provided certain specialized training or
know-how. Employee understands and agrees that this goodwill and
reputation, as well as Employee's knowledge of Confidential Information
or Trade Secrets and specialized training and know-how, could be used
unfairly in competition against Company.
(b) Accordingly, Employee agrees that, during the course of
Employee's employment with Company and for one year from the date of
Employee's voluntary or involuntary resignation from, or termination of
employment with, Company, Employee shall not:
(i) Directly or indirectly own, manage, consult,
associate with, operate, join, work for, control or
participate in the ownership, management, operation or control
of, or be connected in any manner with, any business (whether
in corporate, proprietorship, or partnership form or
otherwise), as more than a 10% owner in such business or
member of a group controlling such business, which is engaged
in any activity which competes with the business of Company as
conducted one year prior to (and up through) the date of
Employee's resignation from, or termination of employment
with, Company or which will compete with any proposed business
activity of Company in the planning stage on such date of
resignation or termination. Employee and Company agree that
this provision is reasonably enforced as to any geographic
area.
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(ii) Directly or indirectly solicit, service,
contract with or otherwise engage any past (one year prior),
existing or prospective customer, client, or account who then
has a relationship with Company for current or prospective
business on behalf of a competitor of the Company, or on
Employee's own behalf for a competing business. Employee and
Company agree that this provision is reasonably enforced with
reference to any geographic area applicable to such
relationships with the Company.
(iii) Cause or attempt to cause any existing or
prospective customer, client, or account, who then has a
relationship with the Company for current or prospective
business, to divert, terminate, limit or in any manner modify,
or fail to enter into any actual or potential business
relationship with Company. Employee and Company agree that
this provision is reasonably enforced with reference to any
geographic area applicable to such relationships with the
Company.
(iv) Directly or indirectly solicit, employ or
conspire with others to employ any of Company's employees. The
term "employ" for purposes of this paragraph means to enter
into an arrangement for services as a full-time or part-time
employee, independent contractor, consultant, agent or
otherwise. Employee and Company agree that this provision is
reasonably enforced as to any geographic area.
(c) Employee further agrees to inform any new employer or
other person or entity with whom Employee enters into a business
relationship during the one year non-competition period, before
accepting such employment or entering into such a business
relationship, of the existence of this Agreement and give such
employer, person or other entity a copy of this paragraph 2.
(d) Company agrees that the terms "activity which competes
with the business of the Company," "competitor of the Company,"
"competing business," and "relationship with the Company" as used in
this Agreement shall be narrowly applied and that it is not the belief
of Company that all companies in the energy business are competitors of
Company. Company further agrees that this Agreement shall not be so
broadly construed that Employee is prevented during the non-compete
period from obtaining all other employment in the energy industry.
3. RETURN OF PROPERTY. Employee agrees that upon the termination
of employment with Company the originals and all copies of any and all documents
(including computer data, disks, programs, or printouts) that contain any
customer information, financial information, product information, or other
information that in any way relates to Company, its products or services, its
clients, its suppliers, or other aspects of its business shall be immediately
returned to Company. Employee further agrees to not retain any summary of such
information.
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4. CONFIDENTIAL INFORMATION/TRADE SECRETS.
(a) Employee acknowledges that during the course and as a
result of his or her employment, Employee may receive or otherwise have
access to, or contribute to the production of, Confidential Information
or Trade Secrets. "Confidential Information" or "Trade Secrets" means
information that is proprietary to or in the unique knowledge of
Company (including information discovered or developed in whole or in
part by Employee); the Company's business methods and practices; or
information that derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy. It
includes, among other things, strategies, procedures, manuals,
confidential reports, lists of clients, customers, suppliers, past,
current or possible future products or services, and information
concerning research, development, accounting, marketing, selling or
leases and the prices or charges paid by the Company's customers to the
Company, or by the Company to its suppliers.
(b) Employee further acknowledges and appreciates that any
Confidential Information or Trade Secret constitutes a valuable asset
of Company and that Company intends any such information to remain
secret and confidential. Employee therefore specifically agrees that
except to the extent required by Employee's duties to Company or as
permitted by the express written consent of the Board of Directors,
Employee shall never, either during employment with Company or at any
time thereafter, directly or indirectly use, discuss or disclose any
Confidential Information or Trade Secrets of Company or otherwise use
such information to his or her own or a third party's benefit.
5. CONSIDERATION. Employee and Company agree that the provisions
of this Agreement are reasonable and necessary for the protection of Company and
its business. In exchange for Employee's agreement to be bound by the terms of
this Agreement, Company has provided Employee the consideration provided in
paragraph 1. Employee accepts and acknowledges the adequacy of such
consideration for this Agreement.
6. REMEDIES FOR BREACH. Employee and Company acknowledge that a
breach of the provisions of this Agreement may cause irreparable harm that may
not be fully remedied by monetary damages. Accordingly, Employee and Company
shall, in addition to any relief afforded by law, be entitled to injunctive
relief from the other for breach. Employee and Company agree that both damages
at law and injunctive relief shall be proper modes of relief and are not to be
considered alternative remedies. Employee and Company further agree that the
prevailing party shall be entitled to recover from the other party reasonable
costs of litigation and reasonable attorney fees incurred in any litigation to
enforce this Agreement.
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7. EMPLOYEE'S ACKNOWLEDGEMENT OF REVIEW. Employee represents that
Employee has carefully read and fully understands all provisions of this
Agreement and that Employee has had a full opportunity to review this Agreement
before signing and to have all the terms of this Agreement explained to him or
her by counsel.
8. GENERAL PROVISIONS. Employee and Company acknowledge and
agree as follows:
(a) This Agreement contains the entire understanding of the
parties with regard to all matters contained herein. There are no other
agreements, conditions, or representations, oral or written, express or
implied, with regard to such matters. This Agreement supersedes and
replaces any prior agreement between the parties generally relating to
the same subject matter.
(b) This Agreement may be amended or modified only by a
writing signed by both parties.
(c) Waiver by either Company or Employee of a breach of any
provision, term or condition hereof shall not be deemed or construed as
a further or continuing waiver thereof or a waiver of any breach of any
other provision, term or condition of this Agreement.
(d) This Agreement shall inure to the benefit of and be
binding upon Company and its successors and assigns. Company shall
require any successor (whether direct or indirect, by asset or stock
purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of Company expressly to assume and
agree to perform this Agreement in the same manner and to the same
extent that Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall
mean NRG Energy, Inc., its affiliates or assigns and any such successor
that assumes and agrees to perform this Agreement, by operation of law
or otherwise. No assignment of this Agreement shall be made by
Employee, and any purported assignment shall be null and void.
(e) No provision of this Agreement shall be construed as
denying Company or Employee the right to terminate this Agreement
consistent with the terms hereof.
(f) Employee's obligations under paragraphs 2, 3, and 4 of
this Agreement shall survive any changes in Employee's employment
status with Company, by promotion or otherwise, or Employee's
resignation from, or termination of employment with, Company.
(g) If any court finds any provision or part of this Agreement
to be unreasonable, in whole or in part, such provision shall be deemed
and construed to be reduced to the maximum duration, scope or subject
matter allowable under applicable law. Any invalidation of any
provision or part of this Agreement will not invalidate any other
provision or part of this Agreement.
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(h) This Agreement will be construed and enforced in
accordance with the laws and legal principles of the State of
Minnesota. The Employee consents to the jurisdiction of the Minnesota
courts for the enforcement of this Agreement.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same instrument.
THIS AGREEMENT IS INTENDED TO BE A LEGALLY BINDING DOCUMENT FULLY ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS. IF IN DOUBT, SEEK COMPETENT LEGAL ADVICE BEFORE
SIGNING.
/s/ James J. Bender 4/9/98
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(Employee) Date
NRG ENERGY, INC.
By /s/ David H. Peterson 4/13/98
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Its Chairman, President & CEO Date
Employee acknowledges that he or she has received a copy of this Agreement.
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