exv10w1



 



ANNEX A



AMENDED AND RESTATED KEY EXECUTIVE RETENTION, RESTRUCTURING

BONUS

AND SEVERANCE AGREEMENT

Between

NRG Energy, Inc.

And

Scott J. Davido



 







 







Table of Contents




	 	 	 	 	 	 
	 	Article 1.
	 	Establishment, Term and Purpose
	 	1

	 
	 	 
	 	 

	 	Article 2.
	 	Definitions
	 	1

	 
	 	 
	 	 

	 	Article 3.
	 	Restructuring Bonus
	 	4

	 
	 	 
	 	 

	 	Article 4.
	 	Severance Benefits
	 	4

	 
	 	 
	 	 

	 	Article 5.
	 	Excise Tax
	 	6

	 
	 	 
	 	 

	 	Article 6.
	 	Outplacement Assistance
	 	7

	 
	 	 
	 	 

	 	Article 7.
	 	The
Company’s Payment Obligation
	 	7

	 
	 	 
	 	 

	 	Article 8.
	 	Withholding
	 	8

	 
	 	 
	 	 

	 	Article 9.
	 	Non-Competition Other Than Upon Change in Control
	 	8

	 
	 	 
	 	 

	 	Article 10.
	 	Non-Disparagement
	 	10

	 
	 	 
	 	 

	 	Article 11.
	 	Successors and Assignment
	 	10

	 
	 	 
	 	 

	 	Article 12.
	 	Miscellaneous
	 	11






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Severance Agreement



Article 1. Establishment, Term and Purpose


     1.1 Establishment of the Agreement. NRG Energy, Inc., hereby enters into
this Key Executive Retention, Restructuring Bonus and Severance Agreement with
Scott J. Davido (the “Participant”) as of July 1, 2003.


     1.2 Term of the Agreement. This Agreement shall be effective on the
date indicated above and shall remain in effect until the earlier of
(a) a Restructuring Event or (b) termination of the Participant’s
employment with the Company.


     1.3 Purpose of the Agreement. The purpose of the Agreement is to provide
an executive officer and key person of the Company (i) compensation for
contributing to a Restructuring Event and (ii) financial security in the event
of a termination of employment from the Company. This Agreement shall supercede
any other restructuring incentive, severance or severance-related plan or
agreement in which the Participant had participated. The Board has determined
that Scott J. Davido is eligible to participate in the Agreement as of the
Effective Date.



Article 2. Definitions


     Whenever used in this Agreement, the following terms shall have the
meanings set forth below:


     2.1 “Agreement” means this Amended and Restated Key Executive Retention,
Restructuring Bonus and Severance Agreement between the Company and Scott J.
Davido.


     2.2 “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C.
Sections 101-1330.


     2.3 “Base Salary” means an amount equal to the Participant’s base annual
salary as of the date of his termination of employment or the Effective Date,
as applicable. As of July 1, 2003, Participant’s Base Salary shall be
$500,000.00. Subsequent to the Effective Date and payment of any Restructuring
Bonus, Participant’s Base Salary shall be $300,000.00. For this purpose, “Base
Salary” shall not include bonuses, long-term incentive compensation, or any
remuneration other than base annual salary.


     2.4 “Beneficial Owner” shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.


     2.5. “Beneficiary” means the persons or entities designated or deemed to be designated by the Participant.


     2.6 “Board” means the Board of Directors of the Company.


     2.7 “Cause” means the occurrence of any one or more of the following events:


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	 	(a)	 	The continued failure by the Participant to
substantially and effectively perform his normal duties (other
than any such failure resulting from the Participant’s
Disability), after a written demand for substantial performance,
signed by the CEO or the Participant’s immediate supervisor, is
delivered to the Participant, that identifies the manner in
which the Participant has not substantially and effectively
performed his duties, and the Participant has failed to remedy
the situation within thirty (30) business days of receiving such
notice;



	 	(b)	 	The Participant’s conviction or guilty plea for
committing an act of fraud, embezzlement, theft, or other act
constituting a felony; or the Participant’s violation of the
Company Code of Conduct; or



	 	(c)	 	The engaging by the Participant in willful, reckless
or grossly negligent conduct materially and demonstrably
injurious to the Company. However, no act, or failure to act on
the Participant’s part, shall be considered “willful” unless
done, or omitted to be done, by the Participant not in good
faith and without reasonable belief that his action or omission
was in the best interest of the Company.



     2.8 “Code” means the United States Internal Revenue Code of 1986,
as amended.


     2.9 “Company” means NRG Energy, Inc., a Delaware corporation or any
successor thereto as provided in Article 12 herein.


     2.10 “Disability” means the definition provided in the Company’s long
term disability plan.


     2.11 “Effective Date” shall have the meaning ascribed to it in the Plan.


     2.12 “Effective Date of Termination” means the date on which Participant’s
employment termination occurs that triggers the payment of Severance Benefits
hereunder.


     2.13 “Exchange Act” means the United States Securities Exchange Act of
1934, as amended.


     2.14 “Good Reason” means, without the Participant’s express written
consent, the occurrence of any one or more of the following:


	 	(a)	 	Any reduction in the Participant’s Base Salary or
target annual bonus below the amount in effect immediately
preceding the reduction (including all increases following July
1, 2003), except in the case of a reduction that similarly
applies to all executives on a nondiscriminatory basis.



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	 	(b)	 	Any significant and material reduction in the
Participant’s benefits package, except in the case of a
reduction that similarly applies to all executives on a
nondiscriminatory basis.



	 	(c)	 	Any assignment of new duties that requires the
Participant to relocate his domicile more than fifty (50) miles
from the Participant’s current work location.



	 	(d)	 	Any significant and material reduction or diminution
in the duties, responsibilities, or position of the Participant
from that in effect immediately prior to such reduction or
diminution, provided that the sale of a Company division or sale
of a division of a subsidiary company will not automatically be
deemed to result in the significant reduction or diminution in
the duties, responsibilities, or position of the Participant
without a specific showing of such reduction or diminution.



	 	(e)	 	Any significant increase in responsibility without
corresponding compensation (with “responsibility” defined as
those responsibilities as in effect as of the Effective Date).



	 	The Participant’s right to terminate employment for Good Reason
shall not be affected by the Participant’s incapacity due to
Disability. The Participant’s continued employment for fewer
than 30 days after any event or change giving rise to a significant and
material reduction or diminution shall not constitute consent to, or a
waiver of rights with respect to, any circumstance constituting Good
Reason herein.





     2.15 “Notice of Termination” means a written notice that indicates the
specific termination provision in this Agreement relied upon, and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Participant’s employment under the provision so
indicated.


     2.16 “Participant” means Scott J. Davido, an executive officer and key
person of the Company.


     2.17 “Person” shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a “group” as defined in Section 13(d).


     2.18 “Plan” means the Company’s chapter 11 plan of reorganization
currently filed with the United States Bankruptcy Court for the Southern
District of New York, as such plan may be subsequently amended.


     2.19 “Restructuring Bonus” means the payment described in Section 3.2
herein.



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     2.20 “Retirement” means retirement as defined in the applicable NRG
Energy, Inc. retirement program in which the Participant is eligible, which may
be amended from time to time as directed by the Board.


     2.21 “Severance Benefits” means the payment of severance compensation as provided in Article 4 herein.


     2.22
“Xcel” shall mean Xcel Energy, Inc, a Minnesota corporation, or any successor thereto.



Article 3. Restructuring Bonus


     3.1 Right to Restructuring Bonus.


     Subject to the provisions herein, upon the occurrence of the Effective
Date, the Participant shall be entitled to receive from the Company a
Restructuring Bonus, as described in Section 3.2 herein, to be paid to the
Participant in a lump sum within 30 days following the Effective Date. Payment
of the Restructuring Bonus shall be conditioned upon the Effective Date
occurring by the date specified in the Plan, unless the conditions to the
Effective Date contained in the Plan regarding occurrence by a specified date
shall have been waived under the Plan in accordance with its terms.


     3.2 Description of Restructuring Bonus.


     If the Participant is entitled to receive a Restructuring Bonus, the
amount of the Restructuring Bonus shall equal one and one-half (1.5) times
the Participant’s Base Salary.


     3.3 Termination of Participant


     The Participant shall not be entitled to a Restructuring Bonus if he is
terminated for Cause, or if his employment with the Company ends due to
Disability, Retirement, or due to a voluntary termination of employment by the
Participant without Good Reason.



Article 4. Severance Benefits


     4.1 Right to Severance Benefits. Subject to the provisions herein, the
Participant shall be entitled to receive from the Company Severance Benefits as
described in Section 4.2 herein, if the Participant’s employment with the
Company is terminated by the Company without Cause or the Participant
terminates employment for Good Reason.


     The Participant shall not be entitled to receive Severance Benefits under
Section 4.2 herein if he is terminated for Cause, or if his employment with the
Company ends due to Disability, Retirement, or due to a voluntary termination
of employment by the Participant without Good Reason.



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     4.2
Description of Severance Benefits. If the Participant becomes entitled to
receive Severance Benefits, as provided in Section 4.1 herein, the Participant
shall receive the following Severance Benefits:


	 	(a)	 	Two (2) times the sum of: (i) the Participant’s Base
Salary; and (ii) the greater of : (a) the Participant’s average
annual bonus earned over the two (2) most recent full fiscal
years prior to the Effective Date of Termination; or (b) the
Participant’s target annual bonus established for the bonus plan
year in which the Participant’s Effective Date of Termination
occurs.



	 	(b)	 	An Amount equal to the Participant’s unpaid targeted
annual incentive, established for the plan year in which the
Participant’s Effective Date of Termination occurs, multiplied
by a fraction, the numerator of which is the number of days
completed in the then existing fiscal year through the Effective
Date of Termination, and the denominator of which is three
hundred sixty-five (365).




	 	(c)	 	A net cash payment equivalent to the COBRA premiums
as in effect as of the Participant’s termination of employment
of the medical insurance and dental insurance for a period of
eighteen (18) months. This cash payment shall be made in one
lump sum (net of applicable withholding).




	 	 	 	COBRA election and continuation shall be the
responsibility of the participant and/or qualified
beneficiaries.




	 	 	 	In the event the COBRA premium shall change for all
employees of the Company, the premium, likewise, shall change
for the Participant in a corresponding manner.




	 	(d)	 	A cash payment of vacation and/or paid time off time
earned prior to the Effective Date of Termination, but not taken
by the Participant.



     4.3 Termination due to Disability. If the Participant’s employment is
terminated due to Disability during the term of this Agreement, the Participant
shall receive his Base Salary and accrued vacation and/or paid time off
through his termination of employment and continuation of the medical
insurance, dental insurance and group term life insurance shall be subject to
the terms under the applicable disability plan of the Company.


     4.4 Termination Due to Retirement or Death. If the Participant’s employment
is terminated by reason of Retirement or death, the Participant or, where
applicable, the Participant’s Beneficiaries, shall receive the Participant’s
Base Salary and accrued vacation/paid time off through his termination of
employment, and continuation of the welfare benefits of medical insurance,
dental insurance, and group term life
insurance shall be subject to the treatment provided under the
applicable retirement or health and welfare plan of the Company. If the
Participant’s employment is terminated by reason of death the amounts to be
paid under this Agreement shall be paid to the Participant’s estate.


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     4.5 Termination for Cause or by the Participant Other Than for Good
Reason. If the Participant’s employment is terminated either: (a) by the
Company for Cause; or (b) by the Participant without Good Reason, the Company
shall pay the Participant his unpaid Base Salary and accrued vacation/paid time
off through his termination of employment, at the rate then in effect, plus all
other amounts to which the Participant is entitled under any compensation plans
of the Company, at the time such payments are due; and the Company shall have
not further obligations to the Participant under this Agreement.


     4.6 Notice of Termination. Any termination by the Company for Cause or by
the Participant for Good Reason shall be communicated to the other party at
least one hundred twenty (120) days prior to the date on which such termination
shall be effective. The Company can terminate the employment of the Participant
with no notice in which case the Company shall provide the
Participant with
continuation of pay of one hundred twenty (120) days.


     4.7 Form and Timing of Severance Benefits. At the discretion of the
Company, all cash payments set forth in Section 4.2 shall be made in 30 equal
monthly installments, net of appropriate withholdings, or in one (1) lump sum,
net of appropriate withholdings, within a reasonable period of time, commencing
or paid at a time not to exceed one hundred twenty (120) days after the
Effective Date of Termination.



Article 5. Excise Tax


     5.1 Excise Tax Equalization Payment. If the Participant becomes
entitled to severance benefits or any other payment or benefit under this
Agreement, or under any other agreement or plans of the Company (in the
aggregate, the “Total Payments”), and any of the Total Payments will be
subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or
any similar tax that may hereafter be imposed), the Company shall pay to the
Participant in cash an additional amount (the “Gross-Up Payment”) such that
the net amount retained by the Participant after deduction of any Excise Tax
upon the Total Payments and any federal, state and local income tax and Excise
Tax upon the Gross-Up Payment provided for by this Section 5.1 (including FICA
and FUTA), shall be equal to the Total Payments. Such payment shall be made by
the Company to the Participant as soon as practicable following the
effective, date of termination, but in no event beyond forty-five (45) days
from such date.


     5.2 Tax Computation. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amounts of such Excise Tax:


	 	(a)	 	Any other payments or benefits received or to be
received by the Participant in connection with a Restructuring
Bonus or the Participant’s termination of employment (whether
pursuant to the terms of this Agreement or any other plan,
arrangement, or agreement with the Company, or with any person
(which shall have the meaning set forth in Section 3(a)(9) of
the Securities Exchange Act of 1934, including a “group” as
defined in Section 13(d) therein) whose actions result in a
Change in Control of the Company or any person affiliated with
the Company or such persons) shall be treated as “parachute
payments” within the meaning of Section 280G(b)(1) of the Code



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	 		 	and shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel as supported by the Company’s
independent auditors and acceptable to the Participant, such
other payments or benefits (in whole or in part) do not
constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning
of Section 280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code, or are
otherwise not subject to the Excise Tax;



	 	(b)	 	The amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the
lesser of: (i) the total amount of the Total Payments; or (ii)
the amount of excess parachute payments within the meaning of
Section 280G(b)(3) (after applying clause (a) above); and



	 	(c)	 	The value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Company’s
independent auditors in accordance with the principles of
Section 280G(d)(3) and (4) of the Code.



     For purposes of determining the amount of the Gross-Up Payment, the
Participant shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up Payment is
to be made, and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Participant’s residence on the
effective date of termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.


     5.3 Subsequent Recalculation. If the Internal Revenue Service adjusts the
computation of the Company under Section 5.2 herein so that the Participant did
not receive the greatest net benefit, the Company shall reimburse the
Participant for the full amount necessary to make the Participant whole, plus
a market rate of interest, as determined by the Committee.



Article 6. Outplacement Assistance


     Following a termination of employment in which Severance Benefits are
payable hereunder, the Participant shall be reimbursed by the Company for the
costs of all outplacement services obtained by the Participant within the two
(2) year period after the Effective Date of Termination; provided, however,
that the total reimbursement shall be limited to $15,000.



Article 7. The Company’s Payment Obligation


     7.1 Payment Obligations Absolute. Except as provided herein, the Company’s
obligation to make the payments and the arrangements provided for herein shall
be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company may have against the
Participant or anyone else; provided that the Company shall retain a setoff and
right to recoupment in the event of any breach by the Participant of his
fiduciary duty at common law or a violation of the provisions of
Articles 9.1
or 9.2. All amounts payable by the Company hereunder shall be paid


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without notice or demand. Except as provided herein, each and every payment made
hereunder by the Company shall be final, and the Company shall not seek to
recover all or any part of such payment from the Participant or from whomever
may be entitled thereto. Notwithstanding the foregoing, the Company reserves
the right to conduct an independent investigation for the sole purpose of
determining whether “Cause” exists that would negate a
payment hereunder. Until the conclusion of such investigation (which shall be conducted
expeditiously) the Company reserves the right to suspend payment of benefits or
alternatively, to condition any benefits on the results of such
investigation. For purposes of this section, “expeditiously” shall be defined as a reasonable
period of time not to exceed six (6) months. Participant shall be notified
within thirty (30) days of the conclusion of the investigation.



     The Participant shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangement made under any provision of
this Agreement, and the obtaining of any such other employment shall in no
event affect any reduction of the Company’s obligations to make the payments
and arrangements required to be made under this Agreement.


     7.2 Contractual Rights to Benefits. This Agreement establishes and vests
in the Participant a contractual right to the benefits to which he is entitled
hereunder. However, nothing herein contained shall required or be deemed to
require, or prohibit or be deemed to prohibit, the Company to segregate,
earmark, or otherwise set aside any funds or other assets, in trust or
otherwise, to provide for any payments to be made or required hereunder.


     7.3 Bankruptcy Court Approval


     Participant acknowledges that the Company has commenced a reorganization
case under chapter 11 of the Bankruptcy Code in the United States Bankruptcy
Court for the Southern District of New York. At Participant’s sole option, the
Company shall promptly move the bankruptcy court for an order authorizing the
assumption of this Agreement under section 365 of the Bankruptcy Code or such
other relief as appropriate to ensure compliance with this Agreement by the
Company and receipt by the Participant of the rights granted hereunder.



Article 8. Withholding


     The Company shall be entitled to withhold from any amounts payable under this
Agreement all taxes as legally shall be required (including, without
limitation, any United States federal taxes, and any other state,
city, or
local taxes).



Article 9. Non-Competition Other Than Upon Change in Control


     9.1 Prohibition on Competition. The Participant agrees that during the
course of the Participant’s employment with the Company, without the prior
written consent of the Company, and for one (1) year from the date of the
Participant’s voluntary or involuntary termination of employment with the
Company; the Participant shall not:


	 	(a)	 	Directly or indirectly own, manage, consult,
associate with, operate, join, work for, control or participate
in the ownership, management, operation or



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	 		 	control of, or be connected in any manner with, any
business (whether in corporate, proprietorship, or partnership
for or otherwise), as more than a 10% owner in such business or
member of a group controlling such business, which is engaged
in any activity which competes with the business of the company
as conducted one (1) year prior to (and up through) the date of
the Participant’s involuntary or voluntary termination of
employment with the Company or which will compete with any
proposed business activity of the Company in the planning
stage on such date of involuntary or voluntary termination.
The participant and the Company agree that this provision is
reasonably enforced as to any geographic area.



	 	(b)	 	Directly or indirectly solicit, service, contract
with or otherwise engage any past (one year prior), existing or
prospective customer, client or account who then has a
relationship with the Company for current or prospective
business on behalf of a competitor of the Company, or on the
Participant’s own behalf for a competing business. The
Participant and the Company agree that this provision is
reasonably enforced with reference to any geographic area
applicable to such relationships with the Company.



	 	(c)	 	Cause or attempt to cause any existing or prospective
customer, client, or account, who then has a relationship with
the Company for current or prospective business, to divert
terminate, limit or in any manner modify, or fail to enter into
any actual or potential business relationship with the Company.
The Participant and the Company agree that this provision is
reasonably enforced with reference to any geographic area
applicable to such relationships with the Company.



	 	(d)	 	The Company agrees that the terms “activity”, “which
competes with the business of the Company”, “competitor of the
Company”, “competing business”, and “relationship with the
Company” as used in this Agreement shall be reasonably
construed and applied.



     9.2 Disclosure of Information. The Participant recognizes that he has
access to and knowledge of certain confidential and proprietary information of
the Company, which is essential to the performance of his duties as an employee
of the Company. The Participant will not, during or after the term of his
employment with the Company, in whole or in part, disclose such information to
any person, firm, corporation, association, or other entity for any reason or
purpose whatsoever, nor shall he make use of any information for his own
purposes.


     9.3 Covenants Regarding Other Employees. During the period ending one (1)
year following the payment of Severance Benefits under this Agreement, the
Participant agrees to not directly or indirectly solicit, employ or conspire
with others to employ any of the Company’s employees. The term “employ” for
purposes of this paragraph means to enter into an arrangement for services as
a full-time or part-time employee, independent contractor, consultant, agent or


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otherwise. The Participant and the Company agree that this provision is
reasonably enforced as to any geographic area,




Article 10. Non-Disparagement


     10.1 Disparagement. The Participant and the Company, each agrees not to
make any disparaging or negative statements about the Company or the
Participant, including but not limited to its products, services or management
any person or entity whatsoever, including but not limited to past, present
and prospective employees or employers, customers, clients, analysts,
investors, vendors and suppliers; provided that, following the expiration of
the non-compete period set forth in Article 9, the non-disparagement provisions
set forth herein is shall not restrain the parties from engaging in legitimate
competition with each other, which could include, but would not be limited to,
legitimate but unfavorable comparisons of products, services, or management of
each other.


     10.2 Release. In order to receive the benefits provided under the
Agreement (other than accrued vacation and paid time-off), the Participant will
be required to provide the Company with a release in a form to be provided by
the Company, or, if Xcel provides the benefits, the Participant
will be required to provide Xcel and the Company with a release in a form to be
provided by Xcel. Such release shall fully release the Company or Xcel, as
applicable, and all of its officers, agents, directors, employees, and
representatives, any affiliated companies, businesses or entities, and all
other persons and entities from each and every legal claim or demand of any
kind that the Participant ever had or might have arising out of any action,
conduct or decision taking place during the Participant’s employment with the
Company, or arising out of the Participant’s separation from that employment,
whether or not any such claim known at the time of separation.



Article 11. Successors and Assignment


     11.1 Successors to the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company or of
any division or subsidiary thereof that employed the Participant at the time
of Termination of Employment to expressly assume and agree to perform the
Company’s obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform them if no such
succession had taken place. Failure of the Company to obtain such assumption
and agreement prior to the effective date of any such succession shall be a
breach of this Agreement and shall entitle the Participant to compensation
from the Company in the same amount and on the same terms as he would be
entitled to hereunder if he had terminated his employment with the Company
voluntarily for Good Reason. Except for the purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Effective Date of Termination.


     11.2 Assignment by the Participant. This Agreement shall inure to the
benefit of and be enforceable by the Participant’s personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees, and legatees. If the Participant dies while any amount would still be
payable to him hereunder had he continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement, to the Participant’s Beneficiary. If the Participant has not named a
Beneficiary, then such amounts shall be paid to the


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Participant’s devisee, legatee, or other designee, or if there is not such
designee, to the Participant’s estate.




Article 12. Miscellaneous


     12.1 Beneficiaries. The Participant may designate one or more persons or
entities as the primary and/or contingent beneficiaries of any Severance
Benefits or Change in Control Severance Benefits owing to the Participant under
this Agreement. Such designation must be in the form of a signed writing
acceptable to the Company. The Participant may make or change such designations
at any time.


     12.2 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine, the feminine
shall include the masculine; the plural shall include the singular, and the
singular shall include the plural.


     12.3 Severability. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall-be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the
provisions hereof and shall have no force and effect.


     12.4 Modification. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is agreed
to in writing and signed by the Participant and by an authorized representative
of the Company, or by the respective parties’ legal representative and
successors.


     12.5 Applicable Law. To the extent not preempted by the laws of the
United States, the laws of the State of Minnesota, shall be the controlling
law in all matters relating to this Agreement.



	 	 	 	 	 
	 	 	 	
SCOTT J. DAVIDO
	 	 	 	 	 
	 	 	 	
/s/ Scott J. Davido


Participant’s Signature

Date: 7/01/03

	 	 	 	 	 
	 	 	 	
NRG ENERGY, INC.
	 	 	 	 	 
	 	 	 	
By: /s/ John R. Boken


John R. Boken
	 	 	 	
Title: President and Chief Operating Officer


	 	 	 	
Date: 07/01/03










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