EXHIBIT 10.43
(NRG LETTERHEAD)
January 30, 2003
Mr. Ershel Redd Jr.
Senior Vice President, Commercial Operations
NRC Energy, Inc.
901 Marquette Avenue
Suite 2500
Minneapolis, MN 55402
Dear Ershel:
I refer you to my employment offer letter to you dated October 8, 2002, and
countersigned by you on October 9, 2002 ("Offer Letter") and specifically to the
"Severance Benefit" provision therein.
As is set forth in that Severance Benefit provision, NRG Energy, Inc. ("NRG")
recognizes that as of the time you were still employed by Xcel Energy, Inc., you
were eligible for benefits under the Xcel Energy Business Unit Vice President
Severance Plan (the "Plan") and that you agreed to withdraw from eligibility
under the Plan upon your commencement of employment with NRG and in
consideration for the benefits set forth in the Severance Benefit provision of
the Offer Letter. A copy of the Plan is appended hereto as Exhibit 1.
NRG has not adopted the Plan and does not hereby adopt the Plan. However, in
keeping with the intentions set forth in the Offer Letter, and for good and
valuable consideration herein acknowledged by NRG and Xcel Energy, Inc., NRG
does hereby agree that it shall -- in your case alone and without adopting the
Plan -- assume all of the obligations set forth in the Plan as if you, Ershel
Redd alone were the "Participant" and "Employee" under the Plan and NRG were the
"Employer," "Corporation" and "Company" under the terms of the Plan.
Specifically, NRG hereby incorporates all of the terms of the Plan into its
Employment relationship with you, as if NRG were the "Employer," "Corporation"
and "Company therein and you were the "Participant" and "Employee" therein.
Please note, however, that for your purposes we have substituted a new Exhibit A
- -- Form of Release Agreement as an attachment to the Plan, and it is this
substituted Exhibit A which you will have to execute and not revoke in order to
receive the Severance Benefits contemplated herein.
In further keeping with the intent of the Severance Benefit provision of the
Offer Letter, and in my capacity as an officer of Xcel Energy, Inc., by my
separate signature below Xcel Energy, Inc., hereby guarantees that in the event
and to the extent NRG fails to provide you all benefits under the Plan it hereby
promises you, Xcel Energy, Inc. guarantees that it shall provide those promised
benefits to you.
Mr. Ershel Redd
January 30, 2003
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Ershel, in order to confirm your agreement to these terms, please execute and
return to Denise Wilson an original version of this letter agreement in the
envelope attached.
Sincerely,
/s/ RICHARD C. KELLY
Richard C. Kelly
President and COO
NRG Energy, Inc
With respect to the guarantee set forth above:
/s/ RICHARD C. KELLY
Richard C. Kelly
Vice President and CFO
Xcel Energy, Inc.
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Ershel Redd Jr. Date
EXHIBIT 1
XCEL ENERGY BUSINESS UNIT VICE PRESIDENT SEVERANCE PLAN
ARTICLE I
ESTABLISHMENT OF PLAN
As of the Effective Date, the Corporation hereby establishes a
separation compensation plan known as the Xcel Energy Business Unit Vice
President Severance Plan.
ARTICLE II
DEFINITIONS
As used herein, the following words and phrases shall have the
following respective meanings unless the context clearly indicates otherwise.
(a) Annual Salary. The Participant's regular annual base
salary immediately prior to his or her termination of employment, including
compensation converted to other benefits under a flexible pay arrangement
maintained by the Corporation or deferred pursuant to a written plan or
agreement with the Corporation, but excluding overtime pay, allowances, premium
pay, compensation paid or payable under any Corporation long-term or short-term
incentive plan or any similar payment.
(b) Change in Control. The same meaning as given to it in,
Section 2, subsections (a) through (d) in the Xcel Energy Inc. Omnibus Incentive
Plan, as amended from time to time.
(c) Code. The Internal Revenue Code of 1986, as amended from
time to time.
(d) Corporation. Xcel Energy Inc. and any successor thereto.
(e) Date of Termination. The date on which a Participant
ceases to be an Employee.
(f) Effective Date. April 1, 2002.
(g) Employee. Any full-time, regular-benefit, non-bargaining
employee of an Employer. The term shall exclude all individuals employed as
independent contractors, temporary employees, other benefit employees,
non-benefit employees, leased employees, even if it is subsequently determined
that such classification is incorrect.
(h) Employer. The Corporation or a Subsidiary which has
adopted the Plan pursuant to Article V hereof.
(i) Participant. An individual who is designated as such
pursuant to Section 3.1.
(j) Plan. The Xcel Energy Business Unit Vice President
Severance Plan.
(k) Release Agreement. An agreement substantially in the form
set forth in Exhibit A to this Plan, with such amendments as the Corporation
may determine to be necessary in order for such agreement to constitute a valid
release by the Participant in question of all claims described therein.
(l) Separation Benefits. The payments are benefits described
in Section 4.3 that are provided to qualifying Participants under the Plan.
(m) Separation Period. The period beginning on a Participant's
Date of Termination and ending upon expiration of one and one-half years.
(n) Subsidiary. Any corporation in which the Corporation,
directly or indirectly, holds a majority of the voting power of such
corporation's outstanding shares of capital stock.
(o) Target Annual Incentive. The Annual Incentive Award that
the Participant would have received for the year in which his or her Date of
Termination occurs, if the target goals had been achieved.
ARTICLE III
ELIGIBILITY
3.1 PARTICIPATION. Employees classified in salary grade BVP shall be
Participants in the Plan.
3.2 DURATION OF PARTICIPATION. A Participant shall only cease to be a
Participant in the Plan as a result of an amendment or termination of the Plan
complying with Article VII of the Plan, or when he or she ceases to be an
Employee of any Employer, unless, at the time he or she ceases to be an
Employee, such Participant is entitled to payment of a Separation Benefit as
provided in the Plan or there has been an event or occurrence described in
Section 4.2(a) which would enable the Participant to terminate employment and
receive a Separation Benefit. A Participant entitled to payment of a Separation
Benefit or any other amounts under the Plan shall remain a Participant in the
Plan until the full amount of the Separation Benefit and any other amounts
payable under the Plan have been paid to the Participant.
ARTICLE IV
SEPARATION BENEFITS
4.1 RIGHT TO SEPARATION BENEFIT. A Participant shall be entitled to
receive Separation Benefits in accordance with Section 4.3 if the Participant
ceases to be an Employee for any reason specified in Section 4.2(a).
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4.2 TERMINATION OF EMPLOYMENT.
(a} Terminations Which Give Rise to Separation Benefits Under
This Plan. Except as set forth in subsection (b) below, a Participant shall be
entitled to Separation Benefits if,
(i) The Participant ceases to be an Employee by
action of the Employer or any of its affiliates (excluding any
transfer to another employer); or
(ii) The Participant's position is eliminated without
a comparable position becoming available, or being offered to
the Participant; or
(iii) The Employee's Annual Salary is reduced by 10%
or more; or
(iv) The Employee is required to relocate to a
location greater than fifty miles from his or her current
working location; or
(v) The Employee ceases to be classified as a
Business Unit Vice President, and within the twelve month
period following such event, (i), (ii), (iii) or (iv) above
occurs.
(b) Terminations Which Do Not Give Rise to Separation Benefits
Under This Plan. If a Participant's employment is terminated for Cause, death,
disability, retirement, or a qualified sale of business (as those terms are
defined below), or voluntarily by the Participant in the absence of an event
described in subsection (a)(ii) of this Section 4.2, the Participant shall not
be entitled to Separation Benefits under the Plan.
(i) A termination for disability shall have occurred
where a Participant is terminated because of an illness or
injury and the Participant has become eligible to receive
long-term disability benefits under, or would have become so
eligible if such Participant were covered by, the
Corporation's long-term disability plan, as it exists at the
time of termination of employment.
(ii) A termination by retirement shall have occurred
where a Participant's termination is due to his voluntary
late, normal or early retirement under a pension plan
sponsored by his Employer or its affiliates, as defined in
such plan.
(iii) A termination for Cause shall have occurred
where a Participant is terminated because of:
(A) the willful and continued failure of the
Participant to perform substantially the
Participant's duties with the
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Corporation or one of its affiliates (other than any
such failure resulting from incapacity due to
physical or mental illness), after a written demand
for substantial performance is delivered to the
Participant by an elected officer of the Corporation
which specifically identifies the manner in which the
elected officer believes that the Participant has not
substantially performed the Participant's duties, or
(B) the willful engaging by the Participant
in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the
Corporation.
For purposes of this provision, no act or failure to act, on the part of the
Participant, shall be considered "willful" unless it is done, or omitted to be
done, by the Participant in bad faith or without reasonable belief that the
Participant's action or omission was in the best interests of the Corporation.
Any act or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board, or upon the advice of counsel for the Corporation,
shall be conclusively presumed to be done, or omitted to be done, by the
Participant in good faith and in the best interests of the Corporation.
4.3 SEPARATION BENEFITS.
(a) If a Participant's employment is terminated in
circumstances entitling him to a separation benefit as provided in Section
4.2(a)(i), or if the circumstances under Section 4.2(a)(ii),(iii), or (iv) occur
and the Participant (or representative) notifies the Company in writing within
sixty days of such occurrence, and the Participant executes and does not revoke
a Release Agreement, the Participant's Employer shall pay such Participant,
within a reasonable and administratively practicable time following the Date of
Termination, or if later, upon the date such Release Agreement becomes
irrevocable, a cash lump sum as set forth in subsection (b) below and the
continued benefits set forth in subsection (c) below, subject to Section 4.6
below. For purposes of determining the benefits set forth in subsection (b) and
(c), if the termination of the Participant's employment is based upon a
reduction of the Participant's Annual Salary as described in subsection (iii) of
Section 4.2, such reduction shall be ignored.
(b) The cash lump sum referred to in Section 4.3(a) shall
equal the aggregate of the following amounts:
(i) the sum of, (1) the Participant's Annual Salary
through the Date of Termination to the extent not theretofore
paid, (2) the product of (x) the Target Annual Incentive and
(y) a fraction; the numerator of which is the number of days
in such year through the Date of Termination, and the
denominator of which is 365, and (3) any compensation
previously deferred by the Participant (together with any
accrued interest or earnings thereon) and any accrued but
unused Paid-Time-Off pay, in each case to the extent not
theretofore paid and in full satisfaction of the rights of the
Participant thereto;
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(ii) an amount equal to the product of 1.5 times the
sum of (x) the Participant's Annual Salary, plus (y) the
Target Annual Incentive Award.
(iii) an amount equal to the difference between (a)
the actuarial equivalent of the benefit under the
Corporation's qualified defined benefit retirement plan (the
"Retirement Plan") and any excess or supplemental retirement
plans in which the Participant would receive if his or her
employment continued during the Separation Period, assuming
that the Participant's compensation during the Separation
Period would have been equal to his or her compensation as in
effect immediately before the termination or, if higher, on
the Effective Date, and (b) the actuarial equivalent of the
Participant's actual benefit (paid or payable), if any, under
the Retirement Plan as of the Date of Termination. The
actuarial assumptions used for purposes of determining
actuarial equivalence shall be no less favorable to the
Participant than the most favorable of those in effect under
the Retirement Plan on the Date of Termination and the
Effective Date; and
(iv) the sum of the additional contributions (other
than pre-tax salary deferral contributions by the Participant)
that would have been made or credited by the Company to the
Participant's accounts under each qualified defined
contribution plan and non-qualified supplemental executive
savings plan, if any, that covered the Participant on the date
the termination of employment occurred, determined by assuming
that:
(A) The Participant's employment had
continued for the Separation Period;
(B) The Participant's rate of compensation
being recognized by each plan immediately prior to
the Date of Termination had continued in effect
during the Separation Period;
(C) In the case of matching contributions,
the Participant's rate of pre-tax salary deferral
contributions in effect for the last plan year
beginning prior to the Date of Termination had
remained in effect throughout the Separation Period;
and
(D) In the case of discretionary
contributions by the Company, the Company continued
to make such contributions during the Separation
Period at the rate that applied to the most recent
plan year that ended prior to the Date of
Termination.
(c) The continued benefits referred to above shall be as
follows:
(i) During the Separation Period, the Participant and his
family shall be provided with medical, dental, vision and life
insurance benefits as if the Participant's employment had not been
terminated;
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provided, however, that if the Participant becomes reemployed with
another employer and is eligible to receive medical or other welfare
benefits under another employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility; and
for purposes of determining eligibility (but not the time of
commencement of benefits) of the Participant for retiree medical,
dental, vision and life insurance benefits under the Corporation's
plans, practices, programs and policies, the Participant shall be
considered to have remained employed during the Separation Period and
to have retired on the last day of such period;
(ii) The Corporation shall, at its sole expense as incurred,
provide the Participant with outplacement services the scope and
provider of which shall be selected by the Participant in his or her
sole discretion (but at a cost to the Corporation of not more than
$15,000);
(iii) The Corporation shall continue to provide the
Participant with financial planning counseling benefits through the one
year anniversary of the Date of Termination; on the same terms and
conditions as were in effect immediately before the termination or, if
more favorable, on the Effective Date and
(iv) The Corporation will pay the business unit vice president
with his or her "flexible perquisite allowance" through the Separation
Period. At the election of the Corporation, such amount may be paid as
a lump sum;
To the extent any benefits described in this Section 4.3(c) cannot be provided
pursuant to the appropriate plan or program maintained for Employees, the
Employer shall provide such benefits outside such plan or program at no
additional cost (including without limitation tax cost) to the Participant.
Notwithstanding the foregoing, if a group insurance carrier refuses to provide
the coverage described in this Section 4.3(c) under its contract issued to the
Corporation, or if the Corporation reasonably determines tat the coverage
required under this Section 4.3(c) would cause a welfare plan sponsored by the
Corporation to violate any provision of the Code prohibiting discrimination in
favor of highly compensated employees or key employees, the Corporation will use
its best efforts to obtain for the Participant an individual insurance policy
providing comparable coverage. However, if the Corporation determines in good
faith that comparable coverage cannot be obtained for less than two times the
premium or premium equivalent for such coverage under the Corporation's welfare
plan or plans, the Corporation's sole obligation under this Section 4.3(c) with
respect to that coverage will be limited to paying the Participant a monthly
amount equal to two times the monthly premium or premium equivalent for that
coverage under the Corporation's plans.
4.4 OTHER BENEFITS PAYABLE. The cash lump sum and continuing benefits
described in Section 4.3 above shall be payable in addition to, and not in lieu
of, all other accrued or vested or, earned but deferred compensation, rights,
options or other benefits which
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may be owed to a Participant upon or following termination, including but not
limited to accrued Paid-Time-Off, vacation or sick pay, amounts or benefits
payable under any bonus or other compensation plans, stock option plan, stock
ownership plan, stock purchase plan, life insurance plan, health plan,
disability plan or similar or successor plan, except as provided in Section 4.6
below.
4.5 LIMITATIONS ON PAYMENTS. In the event it shall be determined that
any Payment would be subject to the Excise Tax, then such Payment shall be
reduced to one dollar below the Safe Harbor Amount.
(a) Definitions. The following terms shall have the following
meanings for purposes of this Section 4.5.
(i) "Excise Tax" shall mean the excise tax imposed by
Section 4999 of the Code, together with any interest or
penalties imposed with respect to such excise tax.
(ii) A "Payment" shall mean any payment or
distribution in the nature of compensation to or for the
benefit of a Participant, whether paid or payable pursuant to
this Plan or otherwise.
(iii) The "Safe Harbor Amount" means the maximum
Parachute Value, as defined under Section 280G(b)(2) of the
Code, of all Payments that a Participant can receive without
any Payments being subject to the Excise Tax.
(iv) A "Separation Payment" shall mean a Payment paid
or payable pursuant to this Plan (disregarding this Section
4.5).
4.6 CONDITIONS TO PAYMENT OBLIGATIONS.
(a) Except as provided in Section 4.6(b) below, the
obligations of the Corporation and the Employers to pay the Separation Benefits
shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Corporation or any of its
Subsidiaries may have against any Participation.
(b) Notwithstanding any other provision of this Plan or any
other plan, program, practice or policy of any Employer: (i) any cash Separation
Benefits that a Participant becomes entitled to receive under Section 4.3(b) of
this Plan shall be reduced (but not below zero) by the aggregate amount of cash
severance, separation, or similar benefits that the Participant may be entitled
to receive under any other plan, program, policy, contract, agreement or
arrangement of any Employer (including without limitation the Xcel Energy Inc.
Senior Executive Severance Policy), except to the extent the Participant waives
his or her right thereto,
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and by the aggregate amount of such cash benefits or pay in lieu of notice that
the Participant may be entitled to receive under applicable law; and (ii) any
continued benefits that a Participant becomes entitled to receive under Section
4.3(c) of this Plan shall be provided concurrently (not consecutively) with any
such benefits that such Participant may be entitled to receive under any other
plan, program, policy, contract, agreement or arrangement of any Employer or
applicable law (including without limitation the health continuation coverage
required by Section 4980B of the Code and Section 601 et seq. of the Employee
Retirement Income Security Act of 1974, as amended). In no event shall a
Participant be obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to a Participant under any of the
provisions of this Plan, nor shall the amount of any payment hereunder be
reduced by any compensation earned by a Participant as a result of employment by
another employer, except as specifically provided in Section 4.3(c)(i).
ARTICLE V
PARTICIPATING EMPLOYERS
This Plan may be adopted by any Subsidiary of the Corporation. Upon
such adoption, the Subsidiary shall become an Employer hereunder and the
provisions of the Plan shall be fully applicable to the Employees of that
Subsidiary who are Participants pursuant to Section 3.1.
ARTICLE VI
SUCCESSOR TO CORPORATION
This Plan shall bind any successor of the Corporation, its assets or
its businesses (whether direct or indirect, by purchase, merger, consolidation
or otherwise), in the same manner and to the same extent that the Corporation
would be obligated under this Plan if no succession had taken place.
In the case of any transaction in which a successor would not by the
foregoing provision or by operation of law be bound by this Plan, the
Corporation shall require such successor expressly and unconditionally to assume
and agree to perform the Corporation's obligations under this Plan, in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place. The term "Corporation," as used in this
Plan, shall mean the Corporation as hereinbefore defined and any successor or
assignee to the business or assets which by reason hereof becomes bound by this
Plan.
ARTICLE VII
DURATION, AMENDMENT AND TERMINATION
7.1 DURATION. The Employer reserves the right to terminate this plan at
any time. Notwithstanding the foregoing, this Plan shall continue in full force
and effect and shall not terminate or expire until after all Participants who
become entitled to any payments hereunder shall have received such payments in
full and all payments and adjustments required to be made pursuant to Section
4.5 have been made.
7.2 AMENDMENT. Except as provided in Section 7.1, the Plan shall not be
subject to amendment, change, substitution, deletion, revocation or termination
in any respect
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which adversely affects the rights of Participants; provided, that this Plan may
be amended if and to the extent necessary to permit the use of the "pooling of
interests" accounting method with respect to the Combination (assuming that such
accounting method is otherwise applicable to the Combination).
7.3 FORM OF AMENDMENT. The form of any amendment of the Plan shall be a
written instrument signed by a duly authorized officer or officers of the
Corporation, certifying that the amendment has been approved by the Board.
ARTICLE VIII
MISCELLANEOUS
8.1 EMPLOYMENT STATUS. This Plan does not constitute a contract of
employment or impose on the Participant or the Participant's Employer any
obligation to retain the Participant as an Employee, to change the status of the
Participant's employment, or to change the Corporation's policies or those of
its Subsidiaries regarding termination of employment.
8.2 CLAIM PROCEDURE. If an Employee or former Employee makes a written
request alleging a right to receive benefits under this Plan or alleging a right
to receive an adjustment in benefits being paid under the Plan, the Corporation
shall treat it as a claim for benefit. All claims for benefit under the Plan
shall be sent to the Human Resources Department of the Corporation and must be
received within 30 days after termination of employment. If the Corporation
determines that any individual who has claimed a right to receive benefits, or
different benefits, under the Plan is not entitled to receive all or any part of
the benefits claimed, it will inform the claimant in writing of its
determination and the reasons therefor in terms calculated to be understood by
the claimant. The notice will be sent within 90 days of the claim unless the
Corporation determines additional time, not exceeding 90 days, is needed. The
notice shall make specific reference to the pertinent Plan provisions on which
the denial is based, and describe any additional material or information is
necessary. Such notice shall, in addition, inform the claimant what procedure
the claimant should follow to take advantage of the review procedures set forth
below in the event the claimant desires to contest the denial of the claim. The
claimant may within 90 days thereafter submit in writing to the Corporation a
notice that the claimant contests the denial of his or her claim by the
Corporation and desires a further review. The Corporation shall within 60 days
thereafter review the claim and authorize the claimant to appear personally and
review pertinent documents and submit issues and comments relating to the claim
to the persons responsible for making the determination on behalf of the
Corporation. The Corporation will render its final decision with specific
reasons therefor in writing and will transmit it to the claimant within 60 days
of the written request for review, unless the Corporation determines additional
time, not exceeding 60 days, is needed, and so notifies the Participant. If the
Corporation fails to respond to a claim filed in accordance with the foregoing
within 60 days or any such extended period, the Corporation shall be deemed to
have denied the claim.
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8.3 VALIDITY AND SEVERABILITY. The invalidity or unenforceability of
any provision of the Plan shall not affect the validity or enforceability of any
other provision of the Plan, which shall remain in full force and effect, and
any prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.4 GOVERNING LAW. The validity, interpretation, construction and
performance of the Plan shall in all respects be governed by the laws of
Minnesota, without reference to principles of conflict of law, except to the
extent pre-empted by federal law.
8.5 WITHHOLDING. The Corporation may withhold from any and all amounts
payable under this Plan all federal, state, local and foreign taxes that may be
required to be withheld by applicable laws or regulations.
XCEL ENERGY INC.
11/12/02
/s/ Cynthia L. Lesher
-----------------------------
By: Cynthia L. Lesher
Chief Administrative Officer
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EXHIBIT A
FORM OF RELEASE AGREEMENT
THIS AGREEMENT is entered into this ___ day of _________________,
______ by and between NRG Energy, Inc. and Xcel Energy Inc. (the "Company"), a
Delaware corporation, and employee name (the "Participant").
WHEREAS, the Participant has become entitled to receive Separation
Benefits as defined in the Xcel Energy Business Unit Vice President Severance
Plan (the "Plan") on the condition that the Participant enter into this Release
Agreement (the "Agreement"); and
WHEREAS, the Participant freely and willfully desires to enter into
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and other
valuable consideration, the Participant, intending to be legally bound, agrees
as follows:
1. Acknowledgment.
(a) The Participant understands and agrees that, in addition to the
Participant's below-described exposure to the Company's Confidential
Information or Trade Secrets, the Participant may, in her capacity as an
employee, at times have met with the Company's customers and suppliers, and that
as a consequence of using and associating with the Company's name, goodwill, and
professional reputation, the Participant has been in a position to develop
personal and professional relationships with the Company's past, current, and
prospective customers and suppliers. The Participant further acknowledges that
during the course and as a result of employment by the Company, the Participant
may have been provided certain specialized training or know-how. The Participant
understands and agrees that this goodwill and reputation, as well as the
Participant's knowledge of Confidential Information or Trade Secrets and
specialized training and know-how, could be used unfairly in competition against
the Company.
(b) Accordingly, the Participant agrees that during the period of one
year after the Date of Termination (the "Covenant Period"), the Participant
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 the Company
as conducted one (1) year prior to (and up through) the date of the
Participant's termination of employment with the Company or which will
compete with any proposed business activity of the Company in the
planning stage on such date of termination. The Participant and the
Company agree that this provision is reasonably enforced as to any
geographic area.
(ii) Directly or indirectly solicit, service, contract with,
or otherwise engage any past (one (1) year prior), existing or
prospective customer, client, or account who then has a relationship
with the Company for current or prospective business on behalf of an
individual or entity that is engaged in a competing business, or on the
Participant's own behalf for a competing business;
(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 the Company; and the Participant
and the Company agree that this clause (iii) is reasonably enforced
with reference to any geographic area applicable to such relationships
with the Company; and
(iv) Directly or indirectly solicit, employ or conspire with
others to employ any of the Company's employees; the term "employ" for
purposes of this clause (iv) meaning to enter into an arrangement for
services as a full-time or part-time employee, independent contractor,
consultant, agent or otherwise; and the Participant and the Company
agree that this clause (iv) is reasonably enforced as too any
geographic area.
(c) The Participant further agrees to inform any new employer or other
person or entity with whom the Participant enters into a business relationship
during the Covenant 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 Agreement.
2. RETURN OF PROPERTY. The Participant agrees that upon the Date
of Termination, the originals and all copies of any and all documents (including
computer data, diskettes, programs, or printouts) that contain any customer
information, financial information, product information, or other information
that in any way relates to the Company, its products or services, its clients,
its suppliers, or other aspects of its business that are in the Participant's
possession shall be immediately returned to the Company. The Participant further
agrees to not retain any summary of such information. The Participant agrees to
return any of the Company's equipment in his or her possession.
3. CONFIDENTIAL INFORMATION/TRADE SECRETS.
(a) The Participant acknowledges that during the course and as a result
of his or her employment, the Participant 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 the Company (including information
discovered or developed in whole or in part by the Participant); 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,
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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. The Participant acknowledges her continuing
agreement to abide by the terms of the Company's Code of Conduct.
(b) The Participant further acknowledges and appreciates
that any Confidential Information or Trade Secret constitutes
a valuable asset of the Company and that the Company intends
any such information to remain secret and confidential. The
Participant therefore specifically agrees that except to the
extent required by the Participant's duties to the Company or
as permitted by the express written consent of the Board of
Directors, the Participant shall never, either during
employment with the Company or at any time thereafter,
directly or indirectly use, discuss or disclose any
Confidential Information or Trade Secrets of the Company or
otherwise use such information to his or her own or a third
party's benefit.
3A. NON-DISPARAGEMENT. The Participant agrees to refrain from making
any statements or communications which in any way allege that the Company acted
in any manner which is wrongful, tortious or unlawful or which gave rise to any
liability or fault. The Participant further agrees the he or she will not
disparage the Company or its employees in any manner. The Company agrees that
neither it, or its agents or employees will disparage the participant in any
manner.
4. CONSIDERATION. The Participant and the Company agree that the above
provisions of this Agreement are reasonable and necessary for the protection of
the Company and its business. In exchange for the Participant's agreement to be
bound by the terms of this Agreement, the Company has provided the Participant
the Severance Benefits under the Plan. The Participant accepts and
acknowledges the adequacy of such consideration for this Agreement.
5. REMEDIES FOR BREACH. The Participant acknowledges that a breach of
the above provisions of this Agreement will cause the Company irreparable harm
that would not be fully remedied by monetary damages. Accordingly, the
Participant agrees that the Company shall, in addition to the requirement to
return the Severance Benefits and any other Consideration to the Company and any
relief afforded by law, be entitled to injunctive relief. The Participant agrees
that both damages at law and injunctive relief shall be proper modes of relief
and are not to be considered alternative remedies.
6. RELEASE.
(a) In consideration of the Separation Benefits, the Participant does
hereby fully and completely release and waive any and all claims, complaints,
causes of action or demands of whatever kind which the Participant has or may
have against the Company, Xcel Energy Inc. or NRG Energy, Inc. and their
predecessors, successors, subsidiaries and affiliates and all officers,
employees and agents of those persons and companies arising out of any actions,
conduct, decisions, behavior or events occurring to the date of his or her
execution of this Release of which the Participant is or has been made aware or
has been reasonably put on notice.
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(b) The Participant understands and accepts that this release
specifically covers but is not limited to any and all claims, complaints, causes
of action or demands of whatever kind which the Participant has or may have
against the above-referenced released parties relating in any way to the terms,
conditions and circumstances of his or her employment to date, whether based on
statutory, regulatory or common law claims for employment discrimination,
including but not limited to discrimination on the basis of race, color, sex,
age, national origin, handicap, religion or reprisal discrimination, arising
under the Federal Civil Rights Act of 1964, as amended, the 1866 Civil Rights
Act, 42 U.S.C 1981, the Americans with Disabilities Act, the Rehabilitation Act
of 1973, the Worker Adjustment and Retraining Notification Act Executive Order
11246, the Age Discrimination in Employment Act, as amended, the Colorado Civil
Rights Act, Minnesota Human Rights Act, or any other administrative order,
federal or state statute or local ordinance, wrongful discharge, breach of
contract, breach of any express or implied promise, misrepresentation, fraud,
reprisal, retaliation, breach of public policy, infliction of emotional
distress, defamation, promissory estoppel, invasion of privacy, negligence, or
any other theory, whether legal or equitable; except that this release will not
impair any existing rights the Participant may have under any presently existing
pension, retirement or employee benefit plan of the Company.
(c) By signing below, the Participant acknowledges that he or she fully
understands and accepts the terms of this release, and represents and agrees
that his or her signature is freely, voluntarily and knowingly given and that he
or she has been provided a full opportunity to review and reflect on the terms
of this release for at least twenty-one (21) days and to seek the advice of
legal counsel of his or her choice, which advice the Participant has been
encouraged to obtain.
7. THE PARTICIPANT'S ACKNOWLEDGMENT OF REVIEW; RIGHT TO REVOKE.
(a) The Participant represents that the Participant has carefully
read and fully understands all provisions of this Agreement and that the
Participant 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.
(b) This Agreement may be revoked by the Participant by written notice
given to
Scott Davido
Senior Vice President and General Counsel
NRG Energy, Inc.
901 Marquette Avenue
Suite 2300
Minneapolis, MN 55402, or
Gary Johnson
Vice President and General Counsel
Xcel Energy Inc.
800 Nicollet Mall
Suite 3000
Minneapolis, MN 55402
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Within fifteen (15) business days after being signed by the Participant.
8. GENERAL PROVISIONS. The Participant and the 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;
(b) This Agreement may be amended or modified only by a writing signed
by both parties;
(c) Waiver by either the Company or the Participant 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
the Company and its successors and assigns. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would have been required to
perform it if no such succession had taken place. As used in this Agreement,
"the Company" shall mean the Company and 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 the Participant,
and any purported assignment shall be null and void;
(e) 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 part of this Agreement;
(f) This Agreement will be construed and enforced in accordance with
the laws and legal principles of the State of Minnesota. The Participant
consents to the jurisdiction of the Minnesota courts for the enforcement of this
Agreement; and
(g) 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.
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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.
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First MI Last Date
NRG ENERGY, INC.
By
------------------------------- -----------------------
Date
Its
----------------------------
Xcel Energy Inc.
By
------------------------------- -----------------------
Date
Its
----------------------------
The Participant acknowledges that he or she has received a copy of this
Agreement.
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