NRG 8-K/A
Nrg Energy, Inc. (NRG)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Explanatory Note
NRG Energy, Inc. (the “Company”) is filing this Form 8-K/A as an amendment to the Current Report on Form 8-K filed by the Company on January 7, 2026 (the “Original 8-K”), reporting the appointment of Robert J. Gaudette as the Company’s Chief Executive Officer effective April 30, 2026. This Amendment to the Original 8-K discloses, among other things, the material terms of Mr. Gaudette’s employment agreement, which was not yet finalized at the time of the filing of the Original 8-K.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of Mr. Gaudette as Chief Executive Officer
As previously disclosed in the Original 8-K, the Board of Directors of the Company appointed Mr. Gaudette as President of the Company, effective January 6, 2026, and as Chief Executive Officer, effective April 30, 2026.
Biographical and other information about Mr. Gaudette is included in the Company’s definitive proxy statement on Schedule 14A filed with the SEC on March 18, 2026, as supplemented on April 16, 2026 (the “2026 Proxy Statement”). Mr. Gaudette does not have any family relationships with any director or executive officer of the Company, and there are no arrangements or understandings with any persons pursuant to which Mr. Gaudette has been appointed to his position. In addition, there have been no transactions directly or indirectly involving Mr. Gaudette that would be required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
In connection with his appointment as Chief Executive Officer, Mr. Gaudette entered into an employment agreement (the “Employment Agreement”) with the Company effective as of April 30, 2026 (the “Effective Date”), pursuant to which he will serve as President and Chief Executive Officer until the date that his employment is terminated by either party in accordance with the Employment Agreement (the “Employment Period”).
The Employment Agreement entitles Mr. Gaudette to an annual base salary of $1,200,000. For each annual period thereafter, the Board will determine whether to increase Mr. Gaudette’s annual base salary. The Board may decrease Mr. Gaudette’s base salary in the case of an across-the-board adjustment for senior executives, but not in excess of the same percentage as other senior executives as a group.
The Employment Agreement provides that, commencing on the Effective Date and for each fiscal year during the Employment Period, Mr. Gaudette is eligible to receive an annual bonus based on achievement of criteria determined by the Board as soon as administratively practicable following the beginning of the applicable fiscal year, with input from Mr. Gaudette. Mr. Gaudette’s target annual bonus will be equal to 125% of his base salary, and the actual annual bonus earned for 2026 will be prorated for the portion of the 2026 fiscal year following the Effective Date. For the portion of the 2026 fiscal year before the Effective Date, Mr. Gaudette will remain eligible to receive the annual bonus previously awarded to him for fiscal year 2026, which had a target amount equal to 100% of his base salary and which will be prorated for the portion of the 2026 fiscal year before the Effective Date.
The Employment Agreement provides that Mr. Gaudette is eligible to participate in the NRG Energy, Inc. Long-Term Incentive Plan (as may be amended from time to time or any successor plan), on such terms as are set forth in the plan, subject to the Board’s approval. For fiscal year 2026, Mr. Gaudette will receive a supplemental equity grant in the form of relative performance stock units (RPSUs) with a target grant-date fair value equal to $5,072,285. For fiscal year 2027, Mr. Gaudette will be eligible for an equity grant with a target grant-date fair value equal to no less than 825% of his base salary.
In addition to the compensation and benefits described above, the Employment Agreement provides that Mr. Gaudette will receive the following:
| · | Reimbursement for annual tax return preparation expenses and tax advice and financial planning, up to a maximum of $25,000 per year, and reimbursement for legal fees and expenses incurred in connection with negotiating the Employment Agreement and other agreements referenced therein, up to a maximum of $10,000; | |
| · | Eligibility to participate 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 as other senior management of the Company; and | |
| · | Reimbursement of certain expenses in connection with litigation or other disputes under the Employment Agreement, subject to specified conditions. |
Mr. Gaudette will receive the following severance benefits if his employment is involuntarily terminated by the Company without cause or if he terminates employment for good reason (each as defined in the Employment Agreement), subject to Mr. Gaudette executing a release of claims and compliance with the post-termination restrictive covenants described below:
| · | A lump sum payment equal to two times Mr. Gaudette’s annual base salary (if such termination occurs within 6 months prior to or 24 months following a change in control, equal to 2.99 times the sum of Mr. Gaudette’s (a) annual base salary and (b) target annual bonus for the year of termination); | |
| · | A lump sum payment equal to the target annual bonus for the year of termination, which amount will be prorated based on the number of days during the year that he was employed by the Company; and | |
| · | Reimbursement of COBRA premiums for up to 18 months after the date of termination, except that such coverage will be discontinued if Mr. Gaudette becomes eligible for medical benefits from a subsequent employer or otherwise. |
If Mr. Gaudette’s employment is terminated as a result of his death or disability, the Company agrees to pay him a lump sum payment equal to the target annual bonus for the year of termination, which amount will be prorated based on the number of days during the year that he was employed by the Company.
If an excise tax under Section 4999 of the Internal Revenue Code would be triggered by any payments under the Employment Agreement or otherwise upon a change in control, the Company will either (a) pay Mr. Gaudette any amounts, subject to Section 4999 of the Internal Revenue Code (and Mr. Gaudette will be responsible for the excise tax) or (b) reduce such payments so that no amounts are subject to Section 4999 of the Internal Revenue Code, whichever results in a better after-tax amount for Mr. Gaudette.
The Employment Agreement includes non-competition and non-solicitation restrictions on Mr. Gaudette during the term of his employment and for one year after his termination of employment. The Employment Agreement also includes Company indemnification obligations and, for Mr. Gaudette, confidentiality, non-disparagement and intellectual property restrictions and an obligation for Mr. Gaudette to cooperate with the Company in the event of any internal, administrative, regulatory, or judicial proceeding.
The foregoing summary of the Employment Agreement is not complete and is qualified in its entirety by the terms and provisions of the Employment Agreement. A copy of the Employment Agreement is filed as Exhibit 10.1 to this report and is incorporated herein by reference.
Transition and Retirement Agreement with Dr. Coben
Also as previously disclosed, Lawrence S. Coben stepped down as Chief Executive Officer and Chair of the Board effective April 30, 2026. In connection with Dr. Coben’s transition, on April 30, 2026, the Company entered into a transition and retirement agreement (the “Retirement Agreement”) with Dr. Coben, pursuant to which Dr. Coben will provide services to the Company as a non-executive employee advisor for the period beginning on April 30, 2026 and ending on January 4, 2027, or such later date as agreed in writing between the Company and Dr. Coben, unless earlier terminated in accordance with the Retirement Agreement.
Under the Retirement Agreement, Dr. Coben will receive a base salary at an annualized rate of $739,500, continued benefit plan participation, subject to the terms of the applicable plan, and will be eligible to receive an annual bonus for 2026 with a target amount equal to $1,848,750, subject to proration based on the time Dr. Coben served as the Company’s Chief Executive Officer in 2026, with the actual bonus earned based on the achievement of criteria determined by the Board of Directors. Dr. Coben will also be eligible for reimbursement of reasonable business expenses incurred in performing services under the Retirement Agreement in accordance with the Company’s policies.
Because Dr. Coben is retirement eligible, upon his departure from the Company on April 30, 2026, all of his outstanding equity awards that were granted at least 12 months prior to April 30, 2026 will continue to vest in accordance with the applicable terms.
The foregoing summary of the Retirement Agreement is not complete and is qualified in its entirety by the terms and provisions of the Retirement Agreement. A copy of the Retirement Agreement is filed as Exhibit 10.2 to this report and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit Number |
Description | |
| 10.1* | Employment Agreement, dated April 30, 2026, by and between NRG Energy, Inc. and Robert J. Gaudette | |
| 10.2* | Transition and Retirement Agreement, dated April 30, 2026, by and between NRG Energy, Inc. and Lawrence S. Coben | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL) |
* Exhibit relates to compensation arrangements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NRG Energy, Inc. | ||
| (Registrant) | ||
| By: | /s/ Christine A. Zoino | |
| Christine A. Zoino | ||
| Corporate Secretary | ||
Dated: April 30, 2026
Exhibit 10.1
EMPLOYMENT AGREEMENT
Between
NRG Energy, Inc.
and
Robert Gaudette
THIS AGREEMENT is made as of April 30, 2026 (the “Agreement Date”), between NRG Energy, Inc. (the “Company”), and Robert Gaudette (“Executive”).
WHEREAS, the Executive currently serves as the Executive Vice President, NRG Business and Wholesale Operations and President of the Company; and
WHEREAS, the Company wishes to continue to employ Executive as President and to promote Executive to serve as its CEO as of the Effective Date (as defined below) and Executive is willing to accept this appointment under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Employment; Effectiveness of this Agreement. The Company shall continue to employ Executive, and Executive hereby agrees to continue in employment with the Company, upon the terms and conditions set forth in this Agreement for the period beginning on April 30, 2026 (the “Effective Date”) and ending as provided in Section 5 hereof (the “Employment Period”). For the avoidance of doubt, the terms of this Agreement will not be effective until the Effective Date and if Executive’s employment with the Company terminates prior to the Effective Date or Executive does not assume the role of CEO as of the Effective Date, this Agreement will be void ab initio. Prior to the Effective Date, Executive will remain subject to the terms and conditions of any plans, policies or arrangements governing the terms of Executive’s employment.
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the President and CEO of the Company and shall have the normal duties, responsibilities, functions and authorities customarily exercised by the President and CEO of a company of similar size and nature as the Company. During the Employment Period, Executive shall render such administrative, financial and other executive and managerial services to the Company and its affiliates which are consistent with Executive’s position, as the Board of Directors of the Company (the “Board”) may from time to time direct.
(b) During the Employment Period, Executive shall report to the Board and shall devote his best efforts and his full business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the Company. Executive shall perform his duties, responsibilities and functions to the Company hereunder to the best of his abilities in a diligent, trustworthy, professional and efficient manner and shall comply with the Company’s policies and procedures in all material respects. In performing his duties and exercising his authority under this Agreement, Executive shall support and implement the business and strategic plans approved from time to time by the Board. During the Employment Period, Executive shall not serve as an officer or director of, or otherwise perform services for compensation for, any other entity without the prior written consent of the Board. Executive may serve as an officer or director of, or otherwise participate in, purely educational, welfare, social, religious and civic organizations so long as such activities do not interfere with Executive’s employment. Nothing contained herein shall preclude Executive from (i) engaging in charitable and community activities; (ii) participating in industry and trade organization activities; (iii) managing his and his family’s personal investments and affairs; and (iv) delivering lectures, fulfilling speaking engagements or teaching at educational institutions; provided, that such activities do not materially interfere with the regular performance of his duties and responsibilities under this Agreement.
3. Compensation and Benefits.
(a) Beginning on the Effective Date, for fiscal year 2026, Executive’s annual base salary shall be $1,200,000. For each subsequent annual period thereafter, the Executive’s annual base salary shall be reviewed by the Board, which shall determine whether to grant an increase (such initial annual base salary and the annual base salary as determined and adjusted upward from time to time by the Board are referred to herein as the “Base Salary”); provided, however, that Base Salary may be reduced in the case of an across-the-board adjustment for senior executives generally but not in excess of the percentage of same for other senior executives, as a group. The Base Salary shall be payable by the Company in regular installments in accordance with the Company’s general payroll practices (in effect from time to time) but in any event no less frequently than monthly. For purposes of this Agreement, the Base Salary shall not include any other type of compensation or benefit paid or payable to the Executive.
(b) Bonuses and Incentive Compensation.
(i) Annual Bonus. Commencing on the Effective Date 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 125% of the Executive’s then Base Salary (the “Annual Bonus”), which shall be pro-rated for the portion of the 2026 fiscal year on and following the Effective Date. For the avoidance of doubt, for the portion of the fiscal year prior to the Effective Date in 2026, Executive will remain eligible to receive the Annual Bonus previously awarded to Executive for fiscal year 2026, but with a target amount equal to 100% of Executive’s base salary that was in effect prior to the Effective Date and pro-rated for the portion of the fiscal year prior to the Effective Date. The Company shall pay the Annual Bonus in a single cash lump-sum after the end of the Company’s fiscal year in accordance with procedures established by the Board, but in no event later than two and one-half months after the end of such fiscal year.
(ii) Long Term Incentive. The Executive shall continue to be eligible to participate in the NRG Energy, Inc. Long-Term Incentive Plan (as may be amended from time to time, or any successor plan) (the “LTIP”), on such terms and conditions as are stated therein. Subject to the approval of the Board, Executive shall be eligible to receive a supplemental equity grant for the 2026 fiscal year in the form of relative performance stock units with an aggregate grant-date target value equal to $5,072,285, with the number of shares subject to the equity award determined in accordance with the Company’s standard practice and subject to service conditions and/or performance conditions determined by the Board. For the 2027 fiscal year, Executive’s grant-date target LTIP award fair value shall be no less than 825% of Executive’s then Base Salary.
(c) During the Employment Period, the Company shall promptly reimburse Executive for all reasonable business expenses incurred by him in the course of performing his duties and responsibilities under this Agreement which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses, subject to the Company’s requirements with respect to reporting and documentation of such expenses. During the Employment Period, the Company will (i) promptly reimburse Executive for reasonable expenses incurred for annual tax return preparation, and ongoing tax advice and financial planning, to a maximum of $25,000 annually, and (ii) promptly reimburse Executive, to a maximum of $10,000, for the reasonable legal fees and expenses incurred in connection with negotiating this Agreement, and the other agreements referred to herein, and in assisting the Company in ensuring that Executive understands his obligations and covenants hereunder; provided that such reimbursements must be made prior to the end of the calendar year following the calendar year in which such expense was incurred.
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(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 executives of the Company;
(ii) paid time off in accordance with the Company policy applicable to senior executives of the Company as in effect from time to time; and
(iii) coverage under the Company’s director and officer liability insurance policy.
4. Board Membership. With respect to all regular elections of directors during the Employment Period, the Company shall nominate, and use its reasonable efforts to cause the election of, Executive to serve as a member of the Board. Effective upon the termination or expiration of the Employment Period for any reason, Executive shall be deemed to have resigned, effective on the termination date from all positions that Executive holds as an officer or employee of the Company and its affiliates, as the case may be, and as a director of the Company and its affiliates, as the case may be, in each case, unless otherwise requested by the Company.
5. Termination.
(a) Termination may occur as follows:
(i) the Employment Period shall terminate immediately upon Executive’s resignation (with or without “Good Reason,” as defined in Section 5(b)), death or Disability (as defined herein); or
(ii) the Employment Period may be terminated by the Company at any time 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.
(b) For purposes of this Agreement, Good Reason shall mean the following without Executive’s consent:
(i) The Company materially reduces the amount of Executive’s then current Base Salary, or the target opportunity for Executive’s total aggregate annual compensation (except where there is a reduction proportionate to a reduction made to other senior executives of the Company),
(ii) A material diminution in Executive’s title, authority, duties, or responsibilities or the assignment of duties to the Executive which are materially inconsistent with Executive’s position,
(iii) The failure of the Company to obtain in writing the obligation to perform or be bound by the terms of this Agreement by any successor to the Company or a purchaser of all or substantially all of the assets of the Company within fifteen (15) days after a merger, consolidation, sale, or similar transaction,
(iv) The failure of the Company to allow Executive to participate in the Company’s employee benefit or retirement plans, policies, practices, or arrangements in which the Executive participates as of the Effective Date at a level comparable to other senior executives of the Company, other than a failure not taken in bad faith and which is remedied by the Company promptly upon receipt of notice thereof given by Executive,
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(v) Any material failure by the Company to comply with any of the provisions of this Agreement, other than any isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of written notice thereof given by the Executive,
(vi) Any failure to elect Executive to the Board at any regular election of directors during the Employment Period, or any removal of Executive from the Board, for any reason, during the Employment Period, or
(vii) A change in reporting structure of the Company where Executive is required to report to someone other than the Board,
provided that in no event shall Executive have Good Reason to terminate his employment unless (A) Executive gives notice to the Company of the existence of the condition constituting Good Reason within 90 days of the initial existence of the condition; (B) the Company does not cure such condition within 30 days of its receipt of such notice; and (C) Executive actually terminates his employment within 90 days following the initial existence of the condition constituting Good Reason.
(c) For purposes of this Agreement, Cause shall mean one or more of the following:
(i) Executive’s willful misconduct or gross negligence, in each case, that has or could reasonably be expected to have demonstrable or serious injury to the Company, monetary or otherwise,
(ii) the Executive’s willful failure to perform Executive’s duties to the Company (other than as a result of death or a physical or mental incapacity),
(iii) conviction of, or pleading of guilty or nolo contendere to, a felony (or state law equivalent) or any crime involving moral turpitude,
(iv) Executive’s performance of any material act of theft, fraud, embezzlement, malfeasance, dishonesty or illegal conduct, in each case, that has or could reasonably be expected to have an adverse effect on the Company, or
(v) Material breach of this Agreement or any other any written agreement between the Executive and the Company, or a violation of the Company’s code of conduct or other written policy.
For purposes of this Agreement, there shall be no termination for Cause pursuant to subsections (i), (ii) or (v) above, unless a written notice, containing a detailed description of the grounds constituting Cause hereunder, is delivered to the Executive stating the basis for the termination. Upon receipt of such notice, the Executive shall be given thirty (30) days to fully cure and remedy the neglect or conduct that is the basis of such claim, provided that the Executive’s right to cure shall not apply if there are egregious, habitual or repeated breaches by the Executive. If, during the 90-day period following Executive’s termination of employment for any reason other than by the Company for Cause, the Company learns of facts or events that could have given rise to the Company’s termination of Executive’s employment for Cause and the Company so determines in good faith that Executive’s employment could have been terminated by the Company for Cause pursuant to this Section 5, Executive’s employment shall be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred, provided that the Company’s ability to deem Executive’s employment under this sentence to be terminated for Cause shall lapse upon a Change in Control.
Notwithstanding the foregoing, should Executive rely upon the written advice of the Company’s General Counsel in making a decision on behalf of the Company, then such reliance cannot form the basis of Cause as defined in this Section 5(c).
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6. Severance.
(a) Termination without Cause or for Good Reason.
(i) In the event of Executive’s termination of employment with the Company (A) by the Company without Cause, or (B) by Executive for Good Reason, Executive shall be entitled to the severance benefits set forth below in Section 6(a)(ii); provided, however, if such termination of employment occurs during the period beginning six (6) months immediately prior to and ending twenty-four (24) months immediately following a “Change in Control” (as defined in the Company Amended and Restated Executive Change-in-Control Severance Plan for Tier IA and Tier IIA Executives, as may be further amended and/or restated from time to time) of the Company, Executive shall in lieu of the severance benefits provided under Section 6(a)(ii) hereof become entitled to the severance benefits set forth below in Section 6(a)(iii). For the avoidance of doubt, if such termination of employment described in this Section 6(a)(i) occurs during the six (6) months immediately prior to a Change in Control, in connection with the consummation of the Change in Control, the Company shall also pay Executive a lump-sum cash payment in an amount equal to the sum of (C) 0.99 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) and (D) 2.99 times Executive’s target Annual Bonus for the plan year in which the termination of employment occurred (determined without regard to any reduction in such target Annual Bonus constituting Good Reason) for the year in which the termination of employment occurs (the amount in the immediately preceding clauses (C) and (D) referred to as the “Top-Up Payment” and being the amount of the severance benefits Executive would receive under Section 6(a)(iii) in excess of the severance benefits Executive would receive under Section 6(a)(ii)). The Top-Up Payment will be made upon the Change in Control.
(ii) As a condition to the payment of the following severance benefits, the Executive shall continue to comply with the provisions of Sections 9 through 11 hereof and within 46 days of the Executive’s termination of employment, execute and deliver, and the applicable revocation period shall have expired with respect to, the “Release” in the form attached hereto as Exhibit A, in consideration for which the Company agrees to the following:
| (A) | The Company shall pay Executive, on the Company’s first normal payroll date following the date the Release becomes non-revocable, a lump-sum cash payment in an amount equal to two times the Executive’s annual Base Salary (as in effect at the date of Executive’s termination determined without regard to any reduction in such Base Salary constituting Good Reason). |
| (B) | The Company shall pay Executive, on the Company’s first normal payroll date following the date the Release becomes non-revocable, a lump-sum cash payment in an amount equal to Executive’s target Annual Bonus for the plan year in which the termination of employment occurred, adjusted on a pro rata basis based on the number of days Executive was actually employed during the bonus plan year in which the termination of employment occurs. |
| (C) | For eighteen (18) months from the date of termination (the “Benefits Continuation Period”), the Company shall reimburse the Executive for his cost to participate in COBRA benefits continuation coverage. |
| (D) | The Company shall treat all equity awards under any other Company plans in accordance with the terms of the plans or agreements under which such awards were created or maintained. |
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| (E) | The Company shall pay Executive the amounts described in Section 6(d). |
(iii) As a condition to the payment of the following severance benefits, the Executive shall continue to comply with the provisions of Sections 9 through 11 hereof and within 46 days of the Executive’s termination of employment execute and deliver, and the applicable revocation period shall have expired with respect to, the Release, in consideration for which the Company agrees to the following:
| (A) | The Company shall pay Executive, on the Company’s first normal payroll date following the date the Release becomes non-revocable, a lump-sum cash payment in an amount equal to 2.99 times the sum of the following: (x) Executive’s annual Base Salary (as in effect at the date of Executive’s termination determined without regard to any reduction in such Base Salary constituting Good Reason) and (y) Executive’s target Annual Bonus for the plan year in which the termination of employment occurred (determined without regard to any reduction in such target Annual Bonus constituting Good Reason) for the year in which the termination of employment occurs. |
| (B) | For eighteen (18) months from the date of termination (the “Change in Control Benefits Continuation Period”), the Company shall reimburse the Executive for his cost to participate in COBRA benefits continuation coverage. |
| (C) | The Company shall pay Executive, on the Company’s first normal payroll date following the date the Release becomes non-revocable, a lump-sum cash payment in an amount equal to Executive’s then target Annual Bonus for the plan year in which the termination of employment occurred, adjusted on a pro rata basis based on the number of days Executive was actually employed during the bonus plan year in which the termination of employment occurs. |
| (D) | The Company shall treat all equity awards under any other Company plans in accordance with the terms of the plans or agreements under which such awards were created or maintained. |
| (E) | The Company shall pay Executive the amounts described in Section 6(d). |
(iv) Notwithstanding anything in this Section 6(a) to the contrary, the benefit reimbursement provided pursuant to Section 6(a)(ii)(C) and Section 6(a)(iii)(B) shall be discontinued prior to the end of the Benefits Continuation Period or Change in Control Benefits Continuation Period, as applicable, in the event Executive becomes eligible for benefits from a subsequent employer (including self-employment or consulting) similar to those benefits Executive was receiving pursuant to his COBRA benefits continuation, as determined by the Company in good faith, Executive shall have a duty to inform the Company as to the terms and conditions of any subsequent employment and the corresponding benefits earned from such employment, and shall provide, or cause to be provided, to the Company in writing correct, complete and timely information concerning the same.
(v) Notwithstanding anything herein to the contrary, if Executive is a “specified employee” (within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) as of his termination of employment, then to the extent necessary to comply with the requirements of Section 409A of the Code, no payments due Executive under this Section 6(a) shall be made earlier than the date that is the earlier of six months following Executive’s termination of employment and Executive’s death, at which time all payments that would otherwise have been made or provided to Executive within that period shall be paid to Executive in a lump sum.
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(b) Termination for Cause or Voluntary Resignation. In the event Executive’s employment with the Company is terminated (i) by the Company for Cause (as defined herein), or (ii) by Executive’s resignation from the Company for any reason other than Good Reason or Disability the Company agrees to the following:
(i) The Company shall pay Executive the amounts described in Section 6(d).
(ii) The Company shall treat all equity awards under any other Company plans in accordance with the terms of the plans or agreements under which such awards were created or maintained.
(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:
(i) The Company shall pay Executive, or his estate or legal representative, within fifteen (15) days after such termination, a lump-sum amount equal to Executive’s target Annual Bonus for the plan year in which the termination of employment occurred, adjusted on a pro rata basis based on the number of days Executive was actually employed during the bonus plan year in which the termination of employment occurs.
(ii) The Company shall treat all equity awards under any other Company plans in accordance with the terms of the plans or agreements under which such awards were created or maintained.
(iii) The Company shall pay Executive the amounts described in Section 6(d).
For purposes of this Section 6(c), “Disability” shall mean “disabled” as defined in Section 409A(a)(2)(C) of the Code and the regulations promulgated thereunder. Executive shall cooperate in all respects with the Company if a question arises as to whether he has become disabled (including, without limitation, submitting to an examination by a medical doctor or other health care specialists selected by the Company and reasonably acceptable to Executive and authorizing such medical doctor or such other health care specialist to discuss Executive’s condition with the Company).
(d) In the case of any termination of Executive’s employment with the Company, Executive or his estate or legal representative shall be entitled to receive from the Company (i) Executive’s Base Salary through the date of termination to the extent not theretofore paid, (ii) to the extent not theretofore paid and not otherwise addressed in this Section 6, the amount of any bonus, incentive compensation, deferred compensation and other compensation earned or accrued by Executive as of the date of termination under any compensation and benefit plans, programs or arrangements maintained in force by the Company (for this purpose, Executive’s Annual Bonus, if any, for any fiscal year shall be deemed to have accrued only on the last day of such fiscal year), (iii) any vacation pay, expense reimbursements and other cash entitlements accrued by Executive, in accordance with Company policy, as of the date of termination to the extent not theretofore paid, and (iv) all benefits accrued by Executive under all benefit plans and qualified and nonqualified retirement, pension, 401(k) and similar plans and arrangements of the Company, in such manner and at such time as are provided under the terms of such plans and arrangements..
(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.
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(f) No Mitigation. In the event of Executive’s termination of employment for whatever reason or in the event of breach of this Agreement by the Company, Executive shall be under no obligation to seek other employment or to otherwise mitigate his damages.
(g) Offset. Prior to a Change in Control only, the Company may offset, to the fullest extent of the law, any amounts due to the Company from the Executive, or advanced or loaned to the Executive by the Company, from any monies owed to Executive or Executive’s estate by reason of his termination of employment; provided that in no event will the payment of any amount that constitutes “deferred compensation” under Section 409A of the Code and the regulations promulgated thereunder be offset. For the avoidance of doubt, the Company shall have no such right to offset on or following a Change in Control.
(h) Limitations. Notwithstanding any other provision of Section 6 to the contrary, (i) to the extent any benefits provided pursuant to Section 6 during the first six months after Executive’s termination are not paid pursuant to a qualified plan, a bona fide sick leave or vacation plan, a disability plan, a death benefit plan or a plan providing medical expense reimbursements which are non-taxable or a separation pay plan (within the meaning of the regulations under Section 409A of the Code Section 409A) and Executive is a “specified employee” within the meaning of Section 409A of the Code, Executive shall pay the cost of such coverage during the first six months following termination and shall be reimbursed for the cost of such coverage six months after Executive’s termination.
7. Indemnification.
(a) The Company agrees that (i) if Executive is made a party, or is threatened to be made a party, to any threatened or actual action, suit or proceeding, whether civil, criminal, administrative, investigative, appellate or other (each, a “Proceeding”) by reason of the fact that he is or was a director, officer, employee, agent, manager, consultant or representative of the Company or is or was serving at the, request of the Company as a director, officer, member, employee, agent, manager, consultant or representative of another entity or (ii) if any claim, demand, request, investigation, dispute, controversy, threat, discovery request or request for testimony or information (each, a “Claim”) is made, or threatened to be made, that arises out of or relates to Executive’s service in any of the foregoing capacities, then Executive shall promptly be indemnified and held harmless by the Company to the fullest extent legally permitted or authorized by the Company’s certificate of incorporation, bylaws or Board resolutions or, if greater, by the laws of the State of Delaware, against any and all costs, expenses, liabilities and losses (including, without limitation, attorney’s fees, judgments, interest, expenses of investigation, penalties, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by the Executive in connection therewith, and such indemnification shall continue as to Executive even if he has ceased to be a director, member, employee, agent, manager, consultant or representative of the Company or other entity and shall inure to the benefit of Executive’s heirs, executors and administrators. The Company shall advance to Executive all costs and expenses incurred by him in connection with any such Proceeding or Claim within 15 days after receiving written notice requesting such an advance. Such notice shall include, to the extent required by applicable law, an undertaking by Executive to repay the amount advanced if he is ultimately determined not to be entitled to indemnification against such costs and expenses.
(b) Neither the failure of the Company (including the Board, independent legal counsel or stockholders) to have made a determination in connection with any request for indemnification or advancement under Section 7(a) that Executive has satisfied any applicable standard of conduct nor a determination by the Company (including the Board, independent legal counsel or stockholders) that Executive has not met any applicable standard of conduct, shall create a presumption that Executive has or has not met an applicable standard of conduct.
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8. 280G Best Net. 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), then such payment or benefit shall be reduced to the minimum extent necessary to avoid the imposition of such tax, but only if such reduction would cause the amount to be retained by Executive to be greater than would be the case if Executive were required to pay such excise tax. The determination of whether any Payment is subject to an Excise Tax and, if so, the amount and time of any reduction required hereunder shall be made by an independent auditor (the “Auditor”) jointly selected and paid by the Company, and agreed to by Executive (which agreement shall not be unreasonable withheld). 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.
9. Confidential Information.
(a) Executive acknowledges that the information, observations and data (including trade secrets) obtained by him while employed by the Company concerning the business or affairs of the Company or any of its affiliates (“Confidential Information”) are the property of the Company or such affiliate. Therefore, except in the course of Executive’s duties to the Company or as may be compelled by law or appropriate legal process, Executive agrees that he shall not disclose to any person or entity or use for his own purposes any Confidential Information or any confidential or proprietary information of other persons or entities in the possession of the Company and its affiliates (“Third Party Information”), without the prior written consent of the Board, unless and to the extent that the Confidential Information or Third 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.
(c) Pursuant to 18 U.S.C. § 1833(b), Executive will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret of the Company or any of its affiliates that (i) is made (x) in confidence to a federal, state, or local government official, either directly or indirectly, or to Executive’s attorney and (y) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. The Executive understands that if the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive (I) files any document containing the trade secret under seal, and (II) does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement, or any other agreement that Executive has with the Company, is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
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(d) Nothing in this Agreement or any other agreement or arrangement with the Company or any of its affiliates shall prohibit or restrict Executive from (i) communicating directly with, reporting possible violations of federal law or regulation to, filing a charge with, providing information to, receiving financial awards from, participating or cooperating in an investigation conducted by or any action or proceeding filed by, or making any disclosure of information or documents to any governmental agency, entity or legislative body, any self-regulatory organization, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, the U.S. National Labor Relations board, the U.S. Congress, any U.S. Inspector General, the U.S. Securities and Exchange Commission, the Legal Department of the Company, or making other disclosures pursuant to the whistleblower provisions of the Dodd-Frank Act or Sarbanes-Oxley Act; provided, however, that Executive expressly waives and relinquishes any rights Executive might have to recover damages or other relief, whether equitable or legal, in any Equal Employment Opportunity Commission proceeding (whether brought by Executive or on Executive’s behalf); or (ii) discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that Executive has reason to believe is unlawful.
10. Intellectual Property, Inventions and Patents. Executive acknowledges that all discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods, trade secrets, designs, analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not including any confidential information) and all registrations or applications related thereto, all other proprietary information and all similar or related information (whether or not patentable) which may relate to the Company’s or any of its affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by Executive (whether alone or jointly with others) while employed by the Company and its affiliates (“Work Product”), belong to the Company or such affiliate. Executive shall promptly disclose such Work Product to the Board and, at the Company’s expense, perform all actions reasonably requested by the Board (whether during or after the Employment Period) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments). Executive acknowledges that all applicable Work Product shall be deemed to constitute “works made for hire” under the U.S. Copyright Act of 1976, as amended. To the extent any Work Product is not deemed a work made for hire, then Executive hereby assigns to the Company or such affiliate all right, title and interest in and to such Work Product, including all related intellectual property rights.
11. Non-Compete, Non-Solicitation, Comment to Others.
(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 “Restricted Period”), he shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed in an executive, managerial or administrative capacity by, or in any manner engage in any company engaged in a business that competes with any businesses of the Company or its affiliates, as such businesses exist or are in process during the Employment Period or on the date of the termination or expiration of the Employment Period (“Competing Business”) 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.
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(b) During the Restricted Period, Executive shall not directly or indirectly through or on behalf of another person or entity and regardless of who initiates the contact (i) induce or attempt to induce any employee, contractor or consultant of the Company or any of its affiliates to leave the employ of or engagement with the Company or such affiliate, or in any way interfere with the relationship between the Company or any affiliate and any employee or consultant thereof, (ii) recruit and/or hire any person who was an employee, contractor or consultant of the Company or any affiliate during the last six months of the Employment Period to work with or perform services for a Competing Business; or (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or other business relation of the Company or any affiliate to cease doing business with the Company or such affiliate, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any affiliate (including, without limitation, making any negative or disparaging statements or communications regarding the Company or its affiliates).
(c) Executive shall not disparage the Company, its subsidiaries and parents, and their respective officers, managers and employees, or make any public statement (whether written or oral) reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, managers, and employees, including, but not limited to, any matters relating to the operation or management of the Company, irrespective of the truthfulness or falsity of such statement, except as may otherwise be required or permitted by applicable law or compelled by process of law. By way of example and not limitation, Executive agrees that he will not make any written or oral statements that cast in a negative light the services, qualifications, business operations or business ethics of the Company or its employees. Nothing in this Section shall restrict either party’s ability to: (i) consult with counsel, (ii) make truthful statements under oath or to a government agency or official, (iii) take any legal action with respect to Executive’s employment or termination of the employment with the Company, or (iv) to discuss or disclose unlawful acts, including sexual harassment and sexual assault.
(d) If, at the time of enforcement of this Section 11, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Executive acknowledges that the restrictions contained in this Section 11 are reasonable and that he has reviewed the provisions of this Agreement with his legal counsel.
(e) In the event of the breach or a threatened breath by Executive of any of the provisions of this Section 11, the Company would suffer irreparable harm, and in addition and supplementary to other rights and remedies existing in its favor, the Company shall be entitled to specific performance and/or injunctive or other equitable relief from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Executive of Section 11(a), the Restricted Period shall be automatically extended by the amount of time between the initial occurrence of the breach or violation and when such breach or violation has been duly cured.
12. Executive’s Representations. Executive hereby represents and warrants to the Company that (i) the execution, delivery and performance of this Agreement by Executive do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he is bound which has not been waived, (ii) Executive is not a party to or bound by any employment agreement, noncompete agreement or confidentiality agreement with any other person or entity which has not been waived, and (iii) on the Effective Date, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and represents that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement and that he fully understands the terms and conditions contained herein.
13. Survival. Sections 5 through 28, inclusive, shall survive and continue in full force in accordance with their terms notwithstanding the expiration or termination of the Employment Period.
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14. Notices. Any notice, communication or request provided for in this Agreement shall be in writing and shall be (a) sent by e-mail (with confirmation of receipt by non-automated reply e-mail from the recipient), (b) personally delivered (with a written acknowledgement of receipt), (c) sent by nationally recognized overnight courier service (with a written acknowledgement of receipt by the overnight courier) or (d) mailed by certified or registered mail, return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
Robert Gaudette
(Address on file with the Company)
Copy to:
Notices to the Company:
Gin Kirkland Kinney
EVP and Chief Administrative Officer
NRG Energy, Inc.
804 Carnegie Center
Princeton, NJ 08540
Email: @nrg.com
Brian Curci
EVP and General Counsel
NRG Energy, Inc.
804 Carnegie Center
Princeton, NJ 08540
Email: @nrg.com
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 (i) when sent by email, (ii) when personally delivered, (iii) two (2) days after being sent by overnight courier, or (iv) three (3) days after mailing by certified or registered mail.
15. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any action in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such, invalid, illegal or unenforceable provision had never been contained herein.
16. Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
17. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.
18. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
19. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the beneficiaries, heirs and representatives of Executive and the successors and assigns of the Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) to all or a majority of its assets, by agreement in form and substance satisfactory to Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform this Agreement if no such succession had taken place. Regardless whether such agreement is executed, this Agreement shall be binding upon any successor of the Company in accordance with the operation of law and such successor shall be deemed the “Company” for purposes of this Agreement. Executive may not assign his rights (except by will or the laws of descent and distribution) or delegate his duties or obligations hereunder. Except as provided by this Section 19, this Agreement is not assignable by any party and no payment to be made hereunder shall be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or other charge.
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20. Choice of Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
21. Amendment and Waiver. The provisions of this Agreement may be amended, modified or waived only with the prior written consent of the Company and Executive, and no course of conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any of the provisions of this Agreement (including, without limitation, the Company’s right to terminate the Employment Period for Cause) shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.
22. Insurance. The Company may, at its discretion, apply for and procure in its own name and for its own benefit life and/or disability insurance on Executive in any amount or amounts considered advisable. Executive agrees to cooperate in any medical or other examination, supply any information and execute and deliver any applications or other instruments in writing as may be reasonably necessary to obtain and constitute such insurance. Executive hereby represents that he has no reason to believe that his life is not insurable at rates now prevailing for healthy men of his age.
23. Indemnification and Reimbursement of Payments on Behalf of Executive. The Company and its affiliates shall be entitled to deduct or withhold from any amounts owing from the Company or any of its affiliates to Executive any federal, state, local or foreign withholding taxes, excise tax, or employment taxes (“Taxes”) imposed with respect to Executive’s compensation or other payments from the Company or any of its affiliates or Executive’s ownership interest in the Company (including, without limitation, wages, bonuses, dividends, the receipt or exercise of equity options and/or the receipt or vesting of restricted equity). In the event the Company or any of its affiliates does not make such deductions or withholdings at the written request of the Executive, Executive shall indemnify the Company and its affiliates for any amounts paid with respect to any such Taxes, together with any interest, penalties and related expenses thereto.
24. Consent to Jurisdiction. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT IN COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH 14 (NOTICE) SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS SECTION 24. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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25. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
26. Corporate Opportunity. During the Employment Period, Executive shall submit to the Board all business, commercial and investment opportunities or offers presented to Executive that relate to the business of the Company or its affiliates (“Corporate Opportunities”), if Executive wishes to accept or pursue, directly or indirectly, such Corporate Opportunities on Executive’s own behalf. This Section 26 shall not apply to purchases of publicly traded stock by Executive.
27. Legal Costs. Except as otherwise agreed to by the parties, the Company shall pay the Executive for costs of litigation or other disputes during Executive’s lifetime including, without limitation, reasonable attorneys’ fees incurred by Executive in asserting any claims or defenses under this Agreement, provided, however, that, for disputes raised prior to a Change in Control, Executive shall be required to reimburse the Company for any previously paid fees and/or bear his own costs of such litigation or disputes (including, without limitation attorneys’ fees) if the court finds in favor of the Company with respect to any claims or defenses asserted by the Executive.
28. Executive’s Cooperation. During the Employment Period and thereafter, Executive shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with respect to any internal, investigation or administrative, regulatory or judicial proceeding involving matters within the scope of Executive’s duties and responsibilities to the Company during the Employment Period (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and turning over to the Company all relevant Company documents which are or may come into Executive’s possession during the Employment Period); provided, however, that any such request by the Company shall not be unduly burdensome or interfere with Executive’s personal schedule or ability to engage in gainful employment. In the event the Company requires Executive’s cooperation in accordance with this Section 28, the Company shall reimburse Executive for reasonable out-of- pocket expenses (including travel, lodging and meals) incurred by Executive during Executive’s lifetime in connection with such cooperation, subject to reasonable documentation. In addition, the Company shall compensate Executive at a rate of $500 per hour for the time in excess of one business day, per occurrence or event, that Executive reasonably spends complying with his obligations under this Section after the expiration of the Employment Period.
29. Section 409A. The intent of the parties is that payments and benefits under this Agreement shall, to the maximum extent be exempt from Section 409A of the Code and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted accordingly. To the extent any payments or benefits under this Agreement are considered subject to Section 409A, it is the intent of the parties that such payments or benefits be compliant with Section 409A and, therefore, this Agreement shall be interpreted to be in compliance therewith. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Section 409A of the Code, the Company shall, after consulting with and receiving the approval of Executive, reform such provision in a manner intended to avoid the incurrence by Executive of any such additional tax or interest while endeavoring to retain the intended economic benefits of this Agreement. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Section 409A of the Code upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A, and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Executive’s right to receive any installment payments shall be treated as a right to receive a series of separate and distinct payments.
30. Clawback. Any compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Company, which is subject to recovery under (i) any non-retroactive Company policy that may be adopted from time to time or (ii) any law, government regulation or stock exchange listing requirement (whether in effect now or in the future), will, in each case, be subject to such deductions and clawback as may be required to be made pursuant to such Company policy, law, government regulation or stock exchange listing requirement (or any policy adopted by the Company to the extent required by any such law, government regulation or stock exchange listing requirement). In addition, if, pursuant to the last sentence of Section 5(c), the Company deems Executive’s employment terminated for Cause, Executive shall promptly repay to the Company, less taxes and withholdings, any severance benefits previously paid to Executive pursuant to Section 6(a)(ii).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| NRG ENERGY, INC. | ||
| By: | /s/ Brian Curci | |
| Name: Brian Curci | ||
| Title: Executive Vice President and General Counsel | ||
| /s/ Robert Gaudette | ||
| Name: Robert Gaudette | ||
| Title: President and Chief Executive Officer | ||
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Exhibit A
SEVERANCE AGREEMENT & GENERAL RELEASE
[To be attached]
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Exhibit 10.2
TRANSITION AND RETIREMENT AGREEMENT
Between
NRG Energy, Inc.
and
Lawrence Coben
THIS AGREEMENT is made as of April 30, 2026 (the “Effective Date”), between NRG Energy, Inc. (the “Company”), and Lawrence Coben (“Executive”).
WHEREAS, Executive currently serves as the Chief Executive Officer (“CEO”) of the Company and the Chair of the Board of Directors (the “Board”) of the Company;
WHEREAS, the Company and Executive have previously announced that, effective April 30, 2026 (the “Transition Date”), Executive will step down from his positions of CEO and Chair of the Board; and
WHEREAS, following the Transition Date, the Company wishes to continue to employ Executive as a non-executive employee in the role of advisor to the Company, and Executive is willing to remain employed with the Company following the Transition Date, under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Prior Agreement. The Company and Executive are parties to that certain Employment Agreement made as of August 1, 2024 (the “Prior Agreement”). Except as expressly provided herein, the terms and conditions of this Agreement shall supersede the terms and conditions of the Prior Agreement.
2. Compensation; Employment Status.
(a) Resignation from Executive Duties. Effective on the Transition Date, Executive shall resign from Executive’s role as CEO and Chair of the Board, as well as any and all titles, positions and appointments Executive holds with the Company or any of its affiliates, whether as an officer, director, trustee, committee member, agent or otherwise, other than Executive’s employment in a non-executive employee role as an advisor to the Company. Accordingly, effective as of the Transition Date, without the prior approval of the Board, Executive shall have no authority to act on behalf of the Company and shall not hold himself out as having such authority to enter into any agreement or incur any obligations on behalf of the Company, commit the Company in any manner or otherwise act in an executive or other decision-making capacity with respect to the Company. Executive agrees to promptly execute such documents as reasonably necessary to effect such resignations.
(b) Service as Advisor. From the Transition Date through January 4, 2027, or such later date as agreed in writing between Executive and the Company (such date, the “Separation Date” and such period from the Transition Date through the Separation Date, the “Advisor Service Period”), Executive shall remain employed by the Company as a non-executive employee as advisor to the Company and shall devote Executive’s best efforts and 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, as Executive determines to be necessary for the success of his role and as requested by the Board and the Chief Executive Officer. Executive shall perform Executive’s duties, responsibilities and functions to the Company hereunder to the best of Executive’s abilities in a diligent, trustworthy, professional and efficient manner and shall comply with the Company’s policies and procedures in all material respects. Executive shall report to the Chief Executive Officer of the Company and coordinate with other executives and advisors.
(c) Compensation as Advisor. During the Advisor Service Period, Executive shall be entitled to (i) an annualized base salary of $739,500, (ii) continued benefit plan participation, subject to the terms thereof, and (iii) vesting of any outstanding long term incentive awards under the Company’s Long-Term Incentive Plan and/or operable plan documents pursuant to the Long-Term Incentive Plan and operable award agreements, in each case, subject to reduction for applicable withholding taxes and deductions and paid in accordance with the Company’s usual and customary payroll practices. In addition, Executive will be eligible to receive an annual bonus for the 2026 performance year (the “2026 Annual Bonus”). The 2026 Annual Bonus will have a target amount equal to $1,848,750 and the amount of the 2026 Annual Bonus actually paid to Executive shall be based on achievement of criteria determined by the Board and shall be prorated for the number of days Executive served as the Company’s CEO in 2026 (120 days). The 2026 Annual Bonus shall be paid in a single cash lump-sum in 2027 in accordance with procedures established by the Board, but in no event later than March 15, 2027 and subject to reduction for applicable withholding taxes and deductions and paid in accordance with the Company’s usual and customary payroll practices.
3. Termination.
(a) Reasons for Termination. Termination may occur as follows:
(i) the Advisor Service Period shall terminate immediately upon the Separation Date, or, if earlier, upon Executive’s resignation, death or Disability (as defined in Section 409A(a)(2)(C) of the Internal Revenue Code of 1986, as amended (the “Code”)); or
(ii) the Advisor Service Period may be terminated prior to the Separation Date by the Company for “Cause” (as defined herein). Except as otherwise provided herein, any termination of the Advisor Service Period by the Company shall be effective as specified in a written notice from the Company to Executive, but in no event more than 30 days from the date of such notice.
(b) Definition of Cause. For purposes of this Agreement, Cause shall mean one or more of the following:
(i) Executive’s willful misconduct or gross negligence in the performance of Executive’s duties to the Company that has or could reasonably be expected to have an adverse effect on the Company,
(ii) Executive’s willful failure to perform Executive’s duties to the Company (other than as a result of death or a physical or mental incapacity),
(iii) indictment for, conviction of, or pleading of guilty or nolo contendere to, a felony or any crime involving moral turpitude,
(iv) Executive’s performance of any material act of theft, fraud, malfeasance or dishonesty in connection with the performance of Executive’s duties to the Company,
(v) breach of this Agreement or any other any written agreement between Executive and the Company, or a violation of the Company’s code of conduct or other written policy.
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(c) Payments Upon Termination. In the event Executive’s employment with the Company is terminated for any reason during the Advisor Service Period, the Company agrees to the following:
(i) The Company shall pay Executive (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, (iii) any vacation pay, expense reimbursements and other cash entitlements accrued by Executive, in accordance with Company policy, as of the date of termination to the extent not theretofore paid, and (iv) all benefits accrued by Executive under all benefit plans and qualified and nonqualified retirement, pension, 401(k) and similar plans and arrangements of the Company, in such manner and at such time as are provided under the terms of such plans and arrangements.
(ii) The Company shall treat all equity awards under any other Company plans in accordance with the terms of the plans or agreements under which such awards were created or maintained.
(d) No Other Payments. Except as provided in (c) 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 Advisor Service Period shall cease upon such termination or expiration, other than those expressly required under applicable law.
(e) No Mitigation. In the event of Executive’s termination of employment for whatever reason or in the event of breach of this Agreement by the Company, Executive shall be under no obligation to seek other employment or to otherwise mitigate his damages.
(f) Offset. The Company may offset, to the fullest extent of the law, any amounts due to the Company from Executive, or advanced or loaned to Executive by the Company, from any monies owed to Executive or Executive’s estate by reason of his termination of employment; provided that in no event will the payment of any amount that constitutes “deferred compensation” under Section 409A of the Code and the regulations promulgated thereunder be offset.
(g) Limitations. Notwithstanding any other provision of Section 3 to the contrary, (i) to the extent any benefits provided pursuant to Section 3 during the first six months after Executive’s termination are not paid pursuant to a qualified plan, a bona fide sick leave or vacation plan, a disability plan, a death benefit plan or a plan providing medical expense reimbursements which are non-taxable or a separation pay plan (within the meaning of the regulations under Section 409A of the Code) and Executive is a “specified employee” within the meaning of Section 409A of the Code, Executive shall pay the cost of such coverage during the first six months following termination and shall be reimbursed for the cost of such coverage six months after Executive’s termination.
4. Prior Agreement Survival; Confidential Information.
(a) Prior Agreement Survival. Sections 7 (Indemnification), 8 (280G Best Net), 9(a) and 9(b) (Confidential Information), 10 (Intellectual Property, Inventions and Patents) and 11 (Non-Compete, Non-Solicitation, Non-Disparagement) of the Prior Agreement, shall survive and continue in full force in accordance with their terms notwithstanding the expiration or termination of the Advisor Service Period with, for the avoidance of doubt, references to “Employment Period” therein referring to the Advisor Service Period under this Agreement.
(b) Confidential Information. Pursuant to 18 U.S.C. §1833(b), Executive will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret of the Company or any of its affiliates that (i) is made (x) in confidence to a federal, state, or local government official, either directly or indirectly, or to Executive’s attorney and (y) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. Executive understands that if the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive (I) files any document containing the trade secret under seal, and (II) does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement, or any other agreement that Executive has with the Company, is intended to conflict with 18 U.S.C. §1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
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Nothing in this Agreement or any other agreement or arrangement with the Company or any of its affiliates shall prohibit or restrict Executive from (i) communicating directly with, reporting possible violations of federal law or regulation to, filing a charge with, providing information to, receiving financial awards from, participating or cooperating in an investigation conducted by or any action or proceeding filed by, or making any disclosure of information or documents to any governmental agency, entity or legislative body, any self-regulatory organization, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, the U.S. National Labor Relations board, the U.S. Congress, any U.S. Inspector General, the U.S. Securities and Exchange Commission, the Legal Department of the Company, or making other disclosures pursuant to the whistleblower provisions of the Dodd-Frank Act or Sarbanes-Oxley Act.; provided, however, that Executive expressly waives and relinquishes any rights Executive might have to recover damages or other relief, whether equitable or legal, in any Equal Employment Opportunity Commission proceeding (whether brought by Executive or on Executive’s behalf); or (ii) discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that Executive has reason to believe is unlawful.
5. Notices. Any notice, communication or request provided for in this Agreement shall be in writing and shall be (a) sent by e-mail (with confirmation of receipt by non-automated reply e-mail from the recipient), (b) personally delivered (with a written acknowledgement of receipt), (c) sent by nationally recognized overnight courier service (with a written acknowledgement of receipt by the overnight courier) or (d) mailed by certified or registered mail, return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
Lawrence Coben
(Address on file with the Company)
Notices to the Company:
Gin Kirkland Kinney
EVP and Chief Administrative Officer
NRG Energy, Inc.
804 Carnegie Center
Princeton, NJ 08540
Email: @nrg.com
Brian Curci
EVP and General Counsel
NRG Energy, Inc.
804 Carnegie Center
Princeton, NJ 08540
Email: @nrg.com
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 (i) when sent by email, (ii) when personally delivered, (iii) two (2) days after being sent by overnight courier, or (iv) three (3) days after mailing by certified or registered mail.
6. 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.
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7. 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.
8. 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.
9. 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.
10. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the beneficiaries, heirs and representatives of Executive and the successors and assigns of the Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) to all or a majority of its assets, by agreement in form and substance satisfactory to Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform this Agreement if no such succession had taken place. Regardless whether such agreement is executed, this Agreement shall be binding upon any successor of the Company in accordance with the operation of law and such successor shall be deemed the “Company” for purposes of this Agreement. Executive may not assign his rights (except by will or the laws of descent and distribution) or delegate his duties or obligations hereunder. Except as provided by this Section10, 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.
11. Choice of Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
12. 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 Advisor Service 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.
13. 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 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.
14. Consent to Jurisdiction. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT IN COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH 5 (NOTICES) 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 14. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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15. 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.
16. Corporate Opportunity. During the Advisor Service Period, Executive shall submit to the Board all business, commercial and investment opportunities or offers presented to Executive that relate to the business of the Company or its affiliates (“Corporate Opportunities”), if Executive wishes to accept or pursue, directly or indirectly, such Corporate Opportunities on Executive’s own behalf. This Section 16 shall not apply to purchases of publicly traded stock by Executive.
17. Legal Costs. Except as otherwise agreed to by the parties, the Company shall pay Executive for costs of litigation or other disputes during Executive’s lifetime including, without limitation, reasonable attorneys’ fees incurred by Executive in asserting any claims or defenses under this Agreement, except that Executive shall bear his own costs of such litigation or disputes (including, without limitation attorneys’ fees) if the court finds in favor of the Company with respect to any claims or defenses asserted by Executive.
18. Executive’s Cooperation. During the Advisor Service Period and thereafter, Executive shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with respect to any internal, investigation or administrative, regulatory or judicial proceeding involving matters within the scope of Executive’s duties and responsibilities to the Company during the Advisor Service 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 Advisor Service 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 Section18, the Company shall reimburse Executive for reasonable out-of- pocket expenses (including travel, lodging and meals) incurred by Executive during Executive’s lifetime in connection with such cooperation, subject to reasonable documentation. In addition, the Company shall compensate Executive at a rate of $500 per hour for the time in excess of one business day, per occurrence or event, that Executive reasonably spends complying with his obligations under this Section after the expiration of the Advisor Service Period.
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19. Section 409A. The intent of the parties is that payments and benefits under this Agreement shall, to the maximum extent be exempt from Section 409A of the Code and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted accordingly. To the extent any payments or benefits under this Agreement are considered subject to Section 409A of the Code, it is the intent of the parties that such payments or benefits be compliant with Section 409A of the Code and, therefore, this Agreement shall be interpreted to be in compliance therewith. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Section 409A of the Code, the Company shall, after consulting with and receiving the approval of Executive, reform such provision in a manner intended to avoid the incurrence by Executive of any such additional tax or interest while endeavoring to retain the intended economic benefits of this Agreement. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Section 409A of the Code upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code, and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Executive’s right to receive any installment payments shall be treated as a right to receive a series of separate and distinct payments.
20. Clawback. Any compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the Company, which is subject to recovery under (i) any Company policy that may be adopted from time to time or (ii) any law, government regulation or stock exchange listing requirement (whether in effect now or in the future), will, in each case, be subject to such deductions and clawback as may be required to be made pursuant to such Company policy, law, government regulation or stock exchange listing requirement (or any policy adopted by the Company to the extent required by any such law, government regulation or stock exchange listing requirement).
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| NRG ENERGY, INC. | ||
| By: | /s/ Brian Curci | |
| Name: Brian Curci | ||
| Title: Executive Vice President and General Counsel | ||
| /s/ Lawrence Coben | ||
| Name: Lawrence Coben | ||
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