exv10w1






Exhibit 10.1




EXECUTION COPY




EMPLOYMENT AGREEMENT




Between



Edward R. Muller



And



RRI Energy, Inc.



     THIS AGREEMENT (this “Agreement”) is made as of April 11, 2010 between RRI Energy,
Inc. (the “Company”) and Edward R. Muller (“Executive”). This Agreement shall be
effective as of the Effective Time (as defined in the Agreement and Plan of Merger, dated as of
April 11, 2010 (the “Merger Agreement”), by and among the Company, RRI Energy Holdings,
Inc., and Mirant Corporation (“Mirant”)).



     In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



     1. Employment. The Company shall employ Executive, and Executive hereby accepts
employment with the Company, upon the terms and conditions set forth in this Agreement, for the
period beginning on the Closing Date and ending as provided in Section 5 of this Agreement (the
“Employment Period”). This Agreement shall be void ab initio and of no
force and effect if the Closing Date does not occur or if the Merger Agreement is terminated.



     2. Position and Duties.



     (a) During the Employment Period, Executive shall serve as the Chief Executive Officer
(“CEO”) of the Company and shall have the normal duties, responsibilities, functions and
authorities customarily exercised by the 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 (the “Company
Group”) as are consistent with Executive’s position and the by-laws of the Company and as the
board of directors of the Company (the “Board”) may from time to time reasonably direct.
Executive shall also serve for no additional compensation or remuneration as an officer or director
of such subsidiaries of the Company as may from time to time be designated by the Board.



     (b) During the Employment Period, Executive shall report to the Board and shall devote his
best efforts and his full business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs of the Company.
Executive shall perform his duties, responsibilities and functions to the Company hereunder to the
best of his abilities in a diligent, trustworthy, professional and efficient manner and shall
comply with the Company’s policies and procedures in all material respects. In
performing his duties and exercising his authority under this Agreement, Executive shall
support and implement the business and strategic plans approved from time to time by the Board and
shall support and cooperate with the Company’s efforts to operate profitably and in conformity



 









 







with
the business and strategic plans approved by the Board. During the Employment Period, Executive
shall not serve as an officer or director of, or otherwise perform services for compensation for,
any other entity without the prior written consent of the Board which shall not be unreasonably
withheld; provided, however, that the Board hereby consents to Executive’s service
on and after the Closing Date as a director of each of the corporations listed on Exhibit A.
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 materially
interfere with Executive’s regular performance of duties and responsibilities hereunder. 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) The Company shall pay Executive an annual salary (the “Base Salary”) at the rate
of $1,135,000.00 in regular installments in accordance with the Company’s ordinary payroll
practices (in effect from time to time), but in any event no less frequently than monthly.



     (b) Bonuses and Incentive Compensation.




     (i) Annual Bonus. For each fiscal year during the Employment Period, Executive
will be eligible to earn an annual bonus based on achievement of performance criteria that
are applicable to other senior executives of the Company established by the Board as soon
as administratively practicable following the beginning of each such fiscal year after
consultation with Executive (the “Annual Bonus”). The target amount (the
“Target Bonus”) of Executive’s Annual Bonus shall equal 100% of Executive’s Base
Salary (at the annual rate in effect at the start of the fiscal year), with a maximum Annual
Bonus in an amount equal to 200% of Executive’s Base Salary (at the annual rate in effect at
the start of the fiscal year). The Company shall pay the Annual Bonus for each fiscal year
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 a half months
following the end of such fiscal year.




     (ii) Annual Equity Grant. Beginning with the first fiscal year in which
equity-based compensation grants are made after the Effective Time to other senior
executives of the Company (but not later than 2011) and for each fiscal year thereafter
during the Employment Period, Executive shall be eligible to receive additional equity-based
compensation under the long-term incentive plan of the Company in effect at the time of such
award, the amount, terms and conditions of such award to be set by the Board at the time of
grant. Such awards shall otherwise be governed by the terms and conditions set forth in the
long-term incentive plan of the Company as may be in effect at the time of
such award and the corresponding award agreement and shall be made at such time as
grants are made to other senior executives of the Company.



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     (iii) Pre-Closing Equity Awards. As of the Effective Time, all equity awards
of Mirant that are outstanding as of immediately prior to the Effective Time shall become
fully vested and exercisable and the post-termination exercise period will be governed by
the agreements evidencing such awards, subject to any longer period as may be provided under
Section 6 of this Agreement.




     (iv) Closing Equity Grant. As of the date after the Closing Date, Executive
shall be granted a number of restricted shares of common stock of the Company (“Company
Common Stock”) equal to the quotient obtained by dividing (A) $4.54 million by (B) the
closing price of a share of Company Common Stock on the date of grant (the “Restricted
Shares”). Subject to Executive’s continued employment through the applicable vesting
date, the Restricted Shares will immediately vest 50% on the first anniversary of the
Closing Date and the remainder on the second anniversary of the Closing Date. The Executive
shall possess dividend rights in respect of the Restricted Shares and, to the extent of
issuance of actual Company Common Stock in lieu of units in respect thereof, voting rights.
The Restricted Shares set forth in this Section 3(b)(iv) shall be in addition to, and not in
lieu of, any annual equity grant to which Executive is entitled pursuant to Section
3(b)(ii).



     (c) During the Employment Period, the Company shall reimburse Executive for all reasonable
business expenses incurred by him in the course of performing his duties and responsibilities under
this Agreement in accordance with the Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses for senior executives. The amount of
reasonable business expenses eligible for reimbursement in any taxable year of Executive shall not
affect the amount of reasonable business expenses eligible for reimbursement in any other taxable
year of Executive. Without limiting the generality of the foregoing, in connection with
Executive’s relocation from Atlanta, Georgia to Houston, Texas, the Company shall reimburse
Executive for the following reasonable out-of-pocket costs and expenses and shall provide such
other reimbursements in accordance with Mirant’s relocation policy for senior executives as in
effect immediately prior to the Closing Date or such more favorable expense reimbursement policies
as may be adopted by the Company from time to time:




     (i) all costs of temporary living accommodations and relocation expenses incurred by
Executive and his spouse in Houston, Texas for up to six months;




     (ii) travel expenses incurred by Executive and his spouse for the purpose of locating a
new residence in Houston, Texas (business class airfare);




     (iii) all closing costs incurred by Executive in connection with selling his current
primary residence in Atlanta, Georgia and purchasing a new primary residence in Houston,
Texas;




     (iv) costs incurred by Executive in transporting his household goods and personal
effects from his primary residence in Atlanta, Georgia to such new primary residence in
Houston, Texas; and




     (v) the purchase of his current residence in Atlanta, Georgia.



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     (d) 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,
disability insurance plans and other benefit plans of the Company as in effect from time to
time, under the terms of such plans and to the same extent and under the same conditions
such participation and coverages are provided generally to other senior executives of the
Company;




     (ii) coverage for services rendered to the Company, its subsidiaries and affiliates
while Executive is a director or officer of the Company, or of any of its subsidiaries or
affiliates, under any director and officer liability insurance policy(ies) maintained by the
Company from time to time; and




     (iii) four weeks of vacation per year.



     4. Board Membership. It is contemplated that Executive shall be elected as a member
and Chairman of the Board by no later than the Closing Date. Thereafter, Executive shall serve as
Chairman of the Board and, in addition to his duties, responsibilities, functions and authorities
as CEO, shall carry out the duties and responsibilities of the Chairman of the Board, until the
next regular election of directors of the Company. The Company shall use its reasonable efforts to
cause Executive to be renominated to be a member of the Board at each succeeding regular election
of directors of the Company. Effective upon the termination or expiration of the Employment
Period, Executive shall be deemed, without further action by Executive or the Company, to have
simultaneously resigned as a director of the Company, and as an officer or director of any other
member of the Company Group, and agrees to take such action as may be reasonably requested by the
Company, including signing such documents as the Board may reasonably request, to effect such
resignation.



     5. Termination. The Employment Period shall end on the third anniversary of the
Closing Date. Notwithstanding the foregoing, (i) the Employment Period shall terminate immediately
upon Executive’s resignation (with or without Good Reason, as defined herein), death or Disability
(as defined herein) and (ii) the Employment Period may be terminated by the Company at any time
prior to such date for Cause (as defined herein) or without Cause. Except as otherwise provided
herein, any termination of the Employment Period by the Company shall be effective as specified in
a written notice from the Company to Executive, but in no event more than 90 days from the date of
such notice. The termination of the Employment Period shall not affect the respective rights and
obligations of the parties which, pursuant to the terms of this Agreement, apply following the date
of Executive’s termination of employment with the Company.



     6. Severance.



     (a) Termination Without Cause or for Good Reason. In the event of Executive’s
termination of employment with the Company (1) by the Company without Cause (as defined herein), or
(2) by Executive for Good Reason (as defined herein), subject to execution of a Release
substantially in the form attached as Exhibit B within 30 days following Executive’s



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termination of
employment with the Company, Executive shall be entitled to the benefits set forth below in this
Section 6(a).




     (i) The Company shall pay Executive an amount equal to the sum of (A) 2.0 times
Executive’s Base Salary, plus (B) 2.0 times Executive’s Target Bonus (as in effect
on the date of Executive’s termination), plus (C) 2.0 times the Company’s annual
cost for life insurance and long-term disability insurance provided to Executive immediately
prior to his termination of employment (calculated by multiplying the monthly cost for such
coverage at the time of Executive’s termination of employment by 12), plus (D) 2.0
times the sum of (1) the annual matching contribution which Executive received under the
Employee Savings Plan and Supplemental Benefit Plan or any successor plans, programs or
other arrangements for the year immediately preceding the year in which Executive’s
employment with the Company terminates, plus (2) the fixed profit sharing and discretionary
profit sharing contributions which Executive received under the Employee Savings Plan and
Supplemental Benefit Plan or any successor plans, programs or other arrangements for the
year immediately preceding the year in which Executive’s employment with the Company
terminates. The severance amount described in the previous sentence shall be paid in a lump
sum on the date that is six months and one day after Executive experiences a “separation
from service” (within the meaning of Section 409A(a)(2)(A)(i) of the Code) with the Company.




     (ii) All of Executive’s equity compensation awards that are outstanding as of the date
of termination shall vest in full and become immediately exercisable and Executive’s stock
options shall remain exercisable for the remaining term of the stock options.




     (iii) The Company shall pay Executive the amounts described in Section 6(e) within 14
days after the date of termination of Executive’s employment. In addition, the Company
shall pay Executive a pro rata portion of Executive’s Target Bonus for the fiscal year in
which Executive’s termination of employment occurs, based on the number of days in such
fiscal year during which Executive was employed. The pro rata bonus payment described in
the previous sentence shall be paid in a lump sum on the date that is six months and one day
after Executive experiences a “separation from service” with the Company within the meaning
of Section 409A(a)(2)(A)(i) of the Code.




     (iv) During the period of 18 months following Executive’s termination of employment in
accordance with this Section 6(a), the Company shall provide to Executive continued coverage
under the medical, dental and other group health benefits and plans in effect for senior
executives of the Company, as in effect on the date of Executive’s termination of employment
(or substantially comparable coverage) for Executive and, where applicable, Executive’s
spouse, dependents and beneficiaries, at the
same contribution or premium rate as may be charged from time to time to senior
executives of the Company generally, as if Executive had continued in employment during such
period.




     (v) The Company shall pay Executive a lump sum amount equal to the cost of an
additional six months of coverage under the medical, dental and vision plans in which



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Executive participates on the date his employment terminates. The cost of coverage for each
month shall equal the excess of COBRA premiums charged for medical, dental and vision
benefits, less the employee monthly contributions for such benefits paid by active senior
executive employees of the Company. For purposes of calculating the COBRA premiums and the
monthly employee premiums, the six months of coverage shall be deemed to begin at the end of
the 18 month period described in subsection (iv), and shall be calculated using assumed
annual inflation factors of 10% for medical benefits, 7% for dental benefits and 3% for
vision benefits, which will be applied to each succeeding calendar year (or portion of a
calendar year) for which the lump sum payment applies. The lump sum amount described in
this subsection (v) shall be paid on the date that is six months and one day after Executive
experiences a “separation from service” with the Company within the meaning of Section
409A(a)(2)(A)(i) of the Code.




     (vi) The Company shall provide a release substantially in the form attached hereto as
Exhibit C. If the Company does not provide the release required pursuant to this subsection
(vi), the Release by the Executive shall be null, void and without effect, and Executive
shall still receive all of the payments and benefits described in subsections (i) through
(v) above.



     (b) Termination for Cause or Voluntary Resignation. In the event that Executive’s
employment with the Company is terminated (i) by the Board for Cause or (ii) by Executive’s
resignation from the Company for any reason other than Good Reason, Retirement (as defined herein)
or Disability (as defined herein), subject to applicable law, the Company agrees to pay Executive
the amounts described in Section 6(e) within 14 days after the date of termination of Executive’s
employment.



     (c) Death. In the event that Executive’s employment with the Company is terminated as
a result of Executive’s death, the Company agrees to the following:




     (i) The Company shall pay Executive’s estate a lump sum amount equal to his target
Annual Bonus for the year of termination prorated for the number of days during such year
that Executive was employed by the Company. Such payment shall be made thirty (30) days
after termination of Executive’s employment as a result of Executive’s death or, if such day
is not a business day, on the first business day of the Company which is at least thirty
(30) days after Executive’s death.




     (ii) All of Executive’s equity compensation awards that are outstanding as of the date
of death shall vest in full and become immediately exercisable and Executive’s stock options
shall remain exercisable for the remaining term of the stock options.




     (iii) Company shall pay Executive’s estate the amounts described in Section 6(e) within
fourteen (14) days after the date of Executive’s death.



     (d) Disability. In the event that Executive’s employment with the Company is
terminated as a result of Executive’s Disability, the Company agrees to the following:




     (i) The Company shall pay Executive (or his legal representative, if applicable) in a
lump sum payment an amount equal to his target Annual Bonus for the



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year of termination
prorated for the number of days during such year that Executive was employed by the Company.
Such payment shall be made on the date that is six (6) months and one day after Executive
experiences a “separation from service” with the Company within the meaning of Section 409A
of the Code.




     (ii) All of Executive’s equity compensation awards that are outstanding as of the
Executive’s Disability shall vest in full and become immediately exercisable and Executive’s
stock options shall remain exercisable for the remaining term of the stock options.




     (iii) The Company shall pay Executive the amounts described in Section 6(e) within 14
days after the date of termination of Executive’s employment.



     (e) Earned But Unpaid Compensation. 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, to the extent permitted by applicable law, from the Company (i) Executive’s Base Salary
through the date of termination to the extent not previously paid, (ii) to the extent not
previously paid, the amount of any bonus, incentive compensation, and other compensation earned and
payable to Executive as of the date of Executive’s termination of employment 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 of the Company ended prior to the year of
termination that is then unpaid, shall be deemed to be earned and payable to Executive) and (iii)
any vacation pay, expense reimbursements and other cash entitlements due and owing to Executive, in
accordance with Company policy, as of the date of termination to the extent not previously paid.



     (f) Equity Awards and Other Plans. Any equity awards outstanding under any Company
long term incentive plans or arrangements shall be paid in accordance with the terms of the plans
or arrangements under which such awards were granted. 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 shall be paid in such manner and at such times as are provided under
the terms of such plans and arrangements.



     (g) Termination Without Cause, for Good Reason as a Result of the Effective Time or a
Change of Control. In the event of Executive’s termination of employment with the Company
during the two-year period following the Effective Time or the period beginning six months before
and ending two years following a Change of Control (as defined herein) (1) by the Company without
Cause, or (2) by Executive for Good Reason, subject to execution of a Release substantially in the
form attached as Exhibit B within 30 days following Executive’s termination
of employment with the Company, Executive shall be entitled to the benefits set forth below in
this Section 6(g), and such benefits shall be in lieu of, and not in addition to, any benefits the
Executive would otherwise be entitled to under Section 6(a).




     (i) The Company shall pay Executive the payments set forth in Section 6(a)(i) except
the applicable multiplier shall be 3.0 (rather than 2.0); provided, however,
that in determining the amount of payment due under Section 6(a)(i), Executive’s actual
Annual Bonus for the year preceding the Effective Time or a Change of Control, as
applicable,



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shall be used, if higher than his Target Bonus. The severance amount described
in the previous sentence shall be paid in a lump sum on the date that is six months and one
day after Executive experiences a “separation from service” with the Company within the
meaning of Section 409A(a)(2)(A)(i) of the Code.




     (ii) The Company shall provide the benefits set forth in Section 6(a)(iv). In
addition, the Company shall pay Executive a lump sum amount equal to the cost of an
additional 18 months of coverage under the medical, dental and vision plans in which
Executive participates on the date his employment terminates. The cost of coverage for each
month shall equal the excess of COBRA premiums charged for medical, dental and vision
benefits, less the employee monthly contributions for such benefits paid by active senior
executive employees of the Company. For purposes of calculating the COBRA premiums and the
monthly employee premiums, the 18 months of coverage shall be deemed to begin at the end of
the 18 month period described in Section 6(a)(iv), and shall be calculated using assumed
annual inflation factors of 10% for medical benefits, 7% for dental benefits and 3% for
vision benefits, which will be applied to each succeeding calendar year (or portion of a
calendar year) for which the lump sum payment applies. The lump sum amount described in
this subsection (ii) shall be paid on the date that is six months and one day after
Executive experiences a “separation from service” with the Company within the meaning of
Section 409A(a)(2)(A)(i) of the Code.




     (iii) All of Executive’s equity compensation awards that are outstanding as of the date
of termination shall vest in full and become immediately exercisable and Executive’s stock
options shall remain exercisable for the remaining term of the stock options.




     (iv) The Company shall pay Executive the amounts described in Section 6(e) within 14
days of the date of termination of Executive’s employment.




     (v) The Company shall provide a release substantially in the form attached hereto as
Exhibit C. If the Company does not provide the release required pursuant to this subsection
(v), the Release by the Executive shall be null, void and without effect, and Executive
shall still receive all of the payments and benefits described in subsections (i) through
(iv) above.



     (h) Retirement. Upon Executive’s Retirement, the Company shall pay Executive the
amounts described in Section 6(e) within 14 days after the date of termination of Executive’s
employment, all of Executive’s equity compensation awards that are outstanding as of such
Retirement shall vest in full and become immediately exercisable and Executive’s stock options
shall remain exercisable for the remaining term of the stock options and Executive shall not
be entitled to payments or benefits under any other provision of this Section 6. If as a result of
the foregoing provision, any equity compensation awards held by Executive would be considered, in
whole or in part, to constitute “nonqualified deferred compensation” within the meaning of Section
409A of the Code and Executive is a specified employee as defined in Section 409A(a)(2)(B)(i) of
the Code, such equity compensation awards that vest as a result of Executive’s termination of
employment shall be settled no earlier than the date that is six months and one day after Executive
experiences a “separation from service” with the Company within



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the meaning of Section
409A(a)(2)(A)(i) of the Code. Executive’s resignation under this Agreement with or without Good
Reason, shall in no way affect Executive’s ability to terminate employment by reason of Executive’s
“retirement” under, or to be eligible to receive benefits under, any compensation and benefits
plans, programs or arrangements of the Company or the Company Group, including without limitation
any retirement or pension plans or arrangements or substitute plans adopted by the Company, the
Company Group or their respective predecessors or successors, and any termination which otherwise
qualifies as Good Reason shall be treated as such even if it is also a “retirement” for purposes of
this Agreement or any such plan. The provisions of this Section 6(h) shall survive any termination
of this Agreement.



     (i) No Other Payments. Except as expressly provided in this Section 6, 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. Any period during which benefits are provided to Executive or his spouse or
dependents under Section 6(a)(iv) or Section 6(g)(ii) shall count towards the period for which
Executive or his spouse or dependents are eligible for continuation coverage under Code Section
4980B or Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as amended, or
other applicable law.



     (j) No Mitigation, No Offset. In the event of Executive’s termination of employment
for whatever reason, Executive shall be under no obligation to seek other employment, and there
shall be no offset against amounts due him under this Agreement or otherwise on account of any
remuneration attributable to any subsequent employment or claims asserted by the Company or any
affiliate; provided that this provision shall not apply with respect to any amounts that
Executive owes to the Company or any member of the Company Group on account of any loan, advance or
other payment, in respect of any of which Executive is obligated to make repayment to the Company
or any member of the Company Group.



     (k) Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:



     “Cause” shall mean one or more of the following:




     (A) the conviction of, or an agreement to a plea of nolo
contendere to, a crime involving moral turpitude or any felony;




     (B) Executive’s willful refusal substantially to perform duties as reasonably
directed by the Board under this or any other agreement;




     (C) in carrying out his duties, Executive engages in conduct that constitutes
fraud, willful neglect or willful misconduct which, in either case, would result in
demonstrable harm to the business, operations, prospects or reputation of the
Company;




     (D) a material violation of the requirements of the Sarbanes-Oxley Act of 2002
(“SOX”) or other federal or state securities law, rule or regulation; or



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     (E) any other material breach of this Agreement.



     For purposes of this Agreement, the Company is not entitled to assert that Executive’s
termination is for Cause unless the Company gives Executive written notice describing the facts
which are the basis for such termination and such grounds for termination (if susceptible to
correction) are not corrected by Executive within thirty (30) days of Executive’s receipt of such
notice to the reasonable, good faith satisfaction of the Board.



     “Change of Control” shall mean the first to occur of any of the following events
following the Effective Time:




     (A) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five percent
(35%) or more of either (i) the then outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or (ii) the combined voting
power of the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting
Securities”); provided, however, that for purposes of this
subsection (A), the following acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the Company, (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any entity controlled by the Company or (iv) any
acquisition by any entity pursuant to a transaction which complies with clauses (i),
(ii) and (iii) of subsection (C) of this Change of Control definition;




     (B) Individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election or nomination for election by
the Company’s shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board;




     (C) Consummation of a reorganization, merger, statutory share exchange or
consolidation, or similar corporate transaction involving the Company and or any of
its subsidiaries, a sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of assets or stock of another entity by the
Company or any of its subsidiaries (each, a “Business Combination”), in each
case, unless, following such Business Combination, (i) all or substantially all of
the individuals and entities that were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting



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Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 50% of
the then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, an entity that as a result of such
transaction owns the Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination of
the Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (ii) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of the Company
or such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 35% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the Business Combination
and (iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or




     (D) Shareholders of the Company approve any plan or proposal for the complete
liquidation or dissolution of the Company.



     “Disability” shall mean Executive’s (i) being unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than 12
months or (ii) by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than three months under an
accident and health plan covering employees of the Company.



     “Good Reason” shall mean Executive’s resignation from employment with the Company
prior to the end of the Employment Period as a result of one or more of the following reasons:




     (A) the Company reduces the amount of Executive’s then current Base Salary or
the target for his Annual Bonus (it being understood that Executive shall not have a
basis to resign for Good Reason if no bonus is paid, or the amount of
the bonus is reduced as a result of the failure of Executive or the Company to
achieve applicable performance targets for such bonus);




     (B) a material diminution in Executive’s title, authority, duties or
responsibilities or the assignment of duties to Executive which are materially
inconsistent with his position; provided, however, that, following
the Effective Time or a Change of Control, any diminution of Executive’s title,
duties or responsibilities shall constitute Good Reason; provided,
further, that Executive



-11-









 







shall not have Good Reason to terminate his
employment either prior to or following the Effective Time or a Change of Control on
the grounds that he no longer holds the position of Chairman of the Board so long as
he is still a member of the Board;




     (C) the failure of the Company to obtain in writing the obligation to perform
this Agreement by any successor to the Company or a purchaser of all or
substantially all of the assets of the Company within 15 days after a merger,
consolidation, sale or similar transaction;




     (D) the failure of the Company to grant Executive the Restricted Shares within
60 days after the Closing Date; or




     (E) following a Change of Control or the Effective Time, the requirement that
Executive move his principal place of business by more than 50 miles from that
previously the case without his consent (it being understood that as of the
Effective Time, Executive’s principal place of business shall be the Company’s
headquarters in Houston, Texas and that the requirement that Executive relocate to
Houston, Texas shall not be considered Good Reason).



     Notwithstanding the foregoing, Executive agrees that the fact that Executive may be subject to
any unintended or adverse tax consequences under Section 409A of the Code or that the Company
amends this Agreement or the terms of any employee benefit plan, program arrangement or agreement
to avoid such adverse tax consequences or he is required to forfeit incentive or other compensation
pursuant to Section 304 of SOX shall not constitute Good Reason for purposes of this Agreement.
For purposes of this Agreement, Executive is not entitled to assert that his termination is for
Good Reason unless Executive gives the Board written notice describing the event or events which
are the basis for such termination within ninety (90) days after the event or events occur and such
grounds for termination (if susceptible to correction) are not corrected by the Company within 30
days of the Company’s receipt of such notice to the reasonable, good faith satisfaction of
Executive.



     “Retirement” shall mean the termination of Executive’s employment for any reason
(other than a termination by Executive in anticipation of a termination of employment by the
Company for Cause) on or after the third anniversary of the Closing Date or such earlier date as
the Board may determine.



     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 or representative of the
Company, Mirant or their respective predecessors or successors or is or was serving at the request
of the Company, Mirant or their respective predecessors or successors as a director, officer,
member, employee, agent, manager or representative of any member of the Company Group or (ii) if
any claim, demand, request, investigation, dispute, controversy, threat, discovery request or
request



-12-









 







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 be indemnified and held harmless by the Company to the fullest extent legally
permitted or authorized by the Company’s certificate of incorporation, by-laws, Board resolutions
or, if greater, by applicable law, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorneys’ 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 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 or
representative of the Company or any member of the Company Group and shall inure to the benefit of
Executive’s heirs, executors and administrators. To the extent permitted by applicable law, 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.



     (c) The Company agrees to use reasonable commercial efforts to maintain director’s and
officer’s liability insurance covering the Executive for services rendered to the Company, its
subsidiaries and affiliates while Executive is a director or officer of the Company or any of its
subsidiaries or affiliates.



     8. Confidential Information. Executive has previously entered into a Confidentiality
Agreement with Mirant, and Executive acknowledges and agrees that such agreement continues in
effect in respect of the Company as a successor to Mirant.



     9. Intellectual Property, Inventions and Patents. Executive has previously entered
into an Intellectual Property Agreement with Mirant, and Executive acknowledges and agrees that
such agreement continues in effect in respect of the Company as a successor to Mirant.



     10. Noncompete, Non-Solicitation.



     (a) Ancillary to this otherwise enforceable agreement, in further consideration of the
compensation to be paid to Executive hereunder and the Company’s agreement to provide Executive
with access to the Company Group’s confidential and proprietary information, Executive acknowledges
and agrees that during the course of his employment with the Company, he shall become familiar with
the Company Group’s trade secrets and with other confidential information concerning the Company
Group and that his services shall be of special, unique and extraordinary value to the Company
Group, and, therefore, Executive agrees that, during the Employment Period and for one (1) year
thereafter (the “Noncompete Period”), he shall not



-13-









 







directly or indirectly own any interest
in, manage, control, be employed in an executive, managerial or administrative capacity by, or
otherwise render executive, managerial or administrative services to, any company engaged in the
business of owning and operating power generation facilities or energy trading and marketing
operations which competes with the businesses of the Company on the date of the termination or
expiration of the Employment Period, within any geographical area in which the Company engages 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.



     (b) During the Noncompete Period, Executive shall not directly or indirectly through another
person or entity (i) induce or attempt to induce any employee of the Company to leave the employ of
the Company, or in any way interfere with the relationship between the Company and any employee
thereof; (ii) hire any person who was a managerial or higher level employee of the Company during
the last six months of the Employment Period; or (iii) induce or attempt to induce any customer,
supplier, licensee, licensor, franchisee or other business relation of the Company to cease doing
business with the Company, or in any way interfere with the relationship between any such customer,
supplier, licensee or business relation of the Company (including, without limitation, making any
negative or disparaging statements or communications regarding the Company). The Company covenants
that it will not, and it will advise members of senior management of the Company and the Board not
to, make any negative or disparaging statements or communications regarding Executive.



     (c) If, at the time of enforcement of this Section 10, 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 10 are reasonable and that
he has reviewed the provisions of this Agreement with his legal counsel.



     (d) Executive acknowledges that in the event of the breach or a threatened breach by Executive
of any of the provisions of this Section 10, 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 10(a), the Noncompete Period shall be automatically
extended by the amount of time between the initial occurrence of the breach or violation and when
such breach or violation has been duly cured.



     11. Better After Tax Cutback.



     (a) Anything in this Agreement to the contrary notwithstanding, in the event that the
Accounting Firm (as defined herein) shall determine that receipt of all Payments (as defined
herein) would subject Executive to tax under Section 4999 of the Code, the Accounting Firm shall
determine whether some amount of Agreement Payments (as defined herein) meets the



-14-









 







definition of
Reduced Amount (as defined herein). If the Accounting Firm determines that there is a Reduced
Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount.



     (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced
to the Reduced Amount, the Company shall promptly give Executive notice to that effect and a copy
of the detailed calculation thereof, and Executive may then elect, in his or her sole discretion,
which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such
election the Present Value (as defined herein) of the aggregate Agreement Payments equals the
Reduced Amount); provided, that the Company shall reduce the Agreement Payments in the
following order: (1) by reducing benefits payable pursuant to Section 6(g)(i) of this Agreement and
then (2) by reducing amounts payable pursuant to Section 6(g)(iii) of this Agreement. All
determinations made by the Accounting Firm under this Section 11 shall be binding upon the Company
and Executive and shall be made no later than five days prior to the Change of Control. In
connection with making determinations under this Section 11, the Accounting Firm shall take into
account the value of any reasonable compensation for services to be rendered by the Executive
before or after the Change of Control, including any non-competition provisions that may apply to
the Executive and the Company shall cooperate in the valuation of any such services, including any
non-competition provisions.



     (c) As a result of the uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is possible that amounts will
have been paid or distributed by the Company to or for the benefit of Executive pursuant to this
Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that
additional amounts which will have not been paid or distributed by the Company to or for the
benefit of Executive pursuant to this Agreement could have been so paid or distributed (each, an
“Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In
the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal
Revenue Service against either the Company or the Executive which the Accounting Firm believes has
a high probability of success determines that an Overpayment has been made, any such Overpayment
paid or distributed by the Company to or for the benefit of the Executive shall be repaid by the
Executive to the Company together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code; provided, however, that no such repayment shall be required
if and to the extent such deemed repayment would not either reduce the amount on which the
Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of
such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial
authority, determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Company to or for the benefit of the Executive
together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the
Code. All fees and expenses of the Accounting Firm in implementing the provisions of this Section
11 shall be borne by the Company.



     (d) The following terms shall have the following meanings for purposes of this Section 11.



-15-









 





          A “Payment” shall mean any payment or distribution in the nature of compensation
(within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive,
whether paid or payable pursuant to this Agreement or otherwise;




          “Agreement Payment” shall mean a Payment paid or payable pursuant to this Agreement
(disregarding this Section);




          “Net After-Tax Receipt” shall mean the Present Value of a Payment net of all taxes
imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under
applicable state and local laws, determined by applying the highest marginal rate under Section 1
of the Code and under state and local laws which applied to the Executive’s taxable income for the
immediately preceding taxable year, or such other rate(s) as the Executive shall certify, in the
Executive’s sole discretion, as likely to apply to the Executive in the relevant tax year(s);




          “Accounting Firm” shall mean [Ernst & Young LLP], or such other nationally recognized
certified public accounting firm as may be designated by the Executive;




          “Parachute Value” of a Payment shall mean the present value as of the date of the
change of control for purposes of Section 280G of the Code of the portion of such Payment that
constitutes a “parachute payment” under Section 280G(b)(2), as determined by the Accounting Firm
for purposes of determining whether and to what extent the Excise Tax will apply to such Payment;
and




          “Reduced Amount” shall mean the amount of Agreement Payments that (x) has a Present
Value that is less than the Present Value of all Agreement Payments and (y) results in aggregate
Net After-Tax Receipts for all Payments that are greater than the Net After-Tax Receipts for all
Payments that would result if the aggregate Present Value of Agreement Payments were any other
amount that is less than the Present Value of all Agreement Payments.




          “Present Value” shall mean such value determined in accordance with Sections
280G(b)(2)(A)(ii) and 280G(d)(4) of Code.




     12. Executive’s Representations. Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by Executive does 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 Closing 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. Notices. All notices or communications hereunder shall be in writing, addressed
as follows:



-16-









 




To the Company:



RRI Energy, Inc.

1000 Main Street

Houston, Texas 77002

Attn: General Counsel



To Executive:



At the most recent address of Executive on file with the Company.




     All such notices shall be conclusively deemed to be received and shall be effective (i) if
sent by hand delivery, upon receipt or (ii) if sent by electronic mail or facsimile, upon
confirmation of receipt by the sender of such transmission.



     14. Severability. In the event any provision or part of this Agreement is found to be
invalid or unenforceable, only that particular provision or part so found, and not the entire
Agreement, will be inoperative.



     15. Complete Agreement. This Agreement and those documents expressly referred to
herein 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, including without limitation, the
Employment Agreement between Mirant, Mirant Services, LLC and Executive dated as of September 30,
2005, as amended.



     16. 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.



     17. 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.



     18. 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. Executive may not assign his rights (except by will or the laws of
descent and distribution) or delegate his duties or obligations hereunder. The Company may add RRI
Energy Corporate Services, LLC as a party to this Agreement, but no such additional shall relieve
the Company of any of its obligations under this Agreement. Except as provided by this Section 18,
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.



-17-









 





     19. 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 Texas.



     20. 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.



     21. Compliance with Section 409A of the Code.



     (a) To the extent this Agreement is subject to Section 409A of the Code, the Company and
Executive intend all payments under this Agreement to comply with the requirements of such section,
and this Agreement shall, to the extent reasonably practicable, be operated and administered to
effectuate such intent. To the extent necessary to avoid adverse tax consequences under Section
409A of the Code, the timing of any payment under this Agreement shall be delayed by six months and
one day in a manner consistent with Section 409A(a)(2)(B)(i) of the Code. If, under this
Agreement, an amount is paid in two or more installments, for purposes of Section 409A of the Code,
each installment shall be treated as a separate payment.



     (b) 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 subject to Section
409A of the Code upon or following a termination of employment unless such termination is also a
“separation from service” as defined in Section 1.409A-1(h) of the Department of Treasury final
regulations, including the default presumptions, and for purposes of any such provision of this
Agreement, references to a “resignation,” “termination,” “terminate,” “termination of employment”
or like terms shall mean separation from service.



     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. Withholding. Any payments made or benefits provided to Executive under this
Agreement shall be reduced by any applicable withholding taxes or other amounts required to be
withheld by law or contract.



     24. Arbitration. Any dispute or controversy arising under or in connection with this
Agreement or otherwise in connection with the Executive’s employment by the Company that cannot be
mutually resolved by the parties to this Agreement and their respective advisors and
representatives shall be settled exclusively by arbitration in Houston, Texas, in accordance with



-18-









 







the rules of the American Arbitration Association before one arbitrator of exemplary qualifications
and stature, who shall be selected jointly by an individual to be designated by the Company and an
individual to be selected by Executive, or if such two individuals cannot agree on the selection of
the arbitrator, who shall be selected by the American Arbitration Association. The Company shall
reimburse Executive’s reasonable legal fees if he prevails on a material issue in an arbitration.



     25. Corporate Opportunity. During the Employment Period, Executive shall submit to
the Board all business, commercial and investment opportunities or offers presented to Executive
that relate to the business of power companies (“Corporate Opportunities”), if Executive
wishes to accept or pursue, directly or indirectly, such Corporate Opportunities on Executive’s own
behalf. This Section 25 shall not apply to purchases of publicly traded stock by Executive.



     26. 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 Group
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 26, the Company shall reimburse Executive
for reasonable out-of-pocket expenses (including travel, lodging and meals) incurred by Executive
in connection with such cooperation, subject to reasonable documentation.



-19-









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 
	 	RRI ENERGY, INC. 	 
	 
	 
	 	/s/
Mark M. Jacobs
 	 
	 	By:  Mark M. Jacobs	 
	 	Its:  President and CEO	 
	 	 	 
	 	/s/
Edward R. Muller
 	 
	 	By:  Edward R. Muller	 
	 	 	 



 









 






	 	 	 	 	 



Exhibit A




LIST OF APPROVED DIRECTORSHIPS


Transocean Ltd.










A-1









 








Exhibit B




FORM OF RELEASE




     This General Release of all Claims (this “Agreement”) is entered into by Edward R.
Muller (“Executive”) and RRI Energy, Inc. (the “Company”), effective as of [DATE].



     In further consideration of the promises and mutual obligations set forth in the Employment
Agreement between Executive and the Company, dated April 11, 2010 (the “Employment
Agreement”), Executive and the Company agree as follows:



     1. Return of Property. All Company files, access keys, desk keys, ID badges,
computers, electronic devices, telephones and credit cards, and such other property of the Company
as the Company may reasonably request, in Executive’s possession must be returned no later than the
date of Executive’s termination from the Company.



     2. General Release and Waiver of Claims.



     (a) Release. In consideration of the payments and benefits provided to Executive
under the Employment Agreement and after consultation with counsel, Executive, personally and on
behalf of each of Executive’s respective heirs, executors, administrators, representatives, agents,
successors and assigns (collectively, the “Releasors”) hereby irrevocably and
unconditionally releases and forever discharges the Company and its subsidiaries and affiliates and
each of their respective officers, employees, directors, and agents (“Releasees”) from any
and all claims, actions, causes of action, rights, judgments, obligations, damages, demands,
accountings or liabilities of whatever kind or character (collectively, “Claims”),
including, without limitation, any Claims under any federal, state, local or foreign law, that the
Releasors had, have, may have, or in the future may possess, arising out of (i) Executive’s
employment relationship with and service as an employee, officer or director of the Company, and
the termination of such relationship or service, and (ii) any event, condition, circumstance or
obligation that occurred, existed or arose on or prior to the date hereof; provided,
however, that Executive does not release, discharge or waive any rights to payments and
benefits provided under the Employment Agreement that are contingent upon the execution by
Executive of this Agreement nor any rights to indemnification or as a shareholder of the Company.



     (b) Specific Release of ADEA Claims. In further consideration of the payments and
benefits provided to Executive under the Employment Agreement, the Releasors hereby unconditionally
release and forever discharge the Releasees from any and all Claims that the Releasors may have as
of the date Executive signs this Agreement arising under the Federal Age Discrimination in
Employment Act of 1967, as amended, and the applicable rules and regulations promulgated thereunder
(“ADEA”). By signing this Agreement, Executive hereby acknowledges and confirms the
following: (i) Executive was advised by the Company in connection with his termination to consult
with an attorney of his choice prior to signing this Agreement and to have such attorney explain to
Executive the terms of this Agreement, including, without limitation, the terms relating to
Executive’s release of claims arising under ADEA, and Executive has in fact consulted with an
attorney; (ii) Executive was given a period of not fewer than 21 days to consider the terms of this
Agreement and to consult with an attorney



B-1









 







of his choosing with respect thereto; and (iii) Executive knowingly and voluntarily accepts
the terms of this Agreement. Executive also understands that he has seven (7) days following the
date on which he signs this Agreement within which to revoke the release contained in this
paragraph, by providing the Company a written notice of his revocation of the release and waiver
contained in this paragraph.



     (c) No Assignment. Executive represents and warrants that he has not assigned any of
the Claims being released under this Agreement.



     3. Proceedings. Executive has not filed, and agrees not to initiate or cause to be
initiated on his behalf, any complaint, charge, claim or proceeding against the Releasees before
any local, state or federal agency, court or other body relating to his employment or the
termination of his employment, other than with respect to the obligations of the Company to
Executive under the Employment Agreement (each, individually, a “Proceeding”), and agrees
not to participate voluntarily in any Proceeding. Executive waives any right he may have to
benefit in any manner from any relief (whether monetary or otherwise) arising out of any
Proceeding.



     4. Remedies. In the event Executive initiates or voluntarily participates in any
Proceeding, or if he fails to abide by any of the terms of this Agreement or his post-termination
obligations contained in the Employment Agreement, or if he revokes the ADEA release contained in
Paragraph 2(b) of this Agreement within the seven-day period provided under Paragraph 2(b), the
Company may, in addition to any other remedies it may have, reclaim any amounts paid to him under
the severance provisions of the Employment Agreement or terminate any benefits or payments that are
subsequently due under the Employment Agreement, without waiving the release granted herein.
Executive acknowledges and agrees that the remedy at law available to the Company for breach of any
of his post-termination obligations under the Employment Agreement or his obligations under
Paragraphs 2 and 3 of this Agreement would be inadequate and that damages flowing from such a
breach may not readily be susceptible to being measured in monetary terms. Accordingly, Executive
acknowledges, consents and agrees that, in addition to any other rights or remedies that the
Company may have at law or in equity, the Company shall be entitled to seek a temporary restraining
order or a preliminary or permanent injunction, or both, without bond or other security,
restraining Executive from breaching his post-termination obligations under the Employment
Agreement or his obligations under Paragraphs 2 and 3 of this Agreement. Such injunctive relief in
any court shall be available to the Company, in lieu of, or prior to or pending determination in,
any arbitration proceeding.



     Executive understands that by entering into this Agreement he will be limiting the
availability of certain remedies that he may have against the Company and limiting also his ability
to pursue certain claims against the Company.



     5. Severability Clause. In the event any provision or part of this Agreement is found
to be invalid or unenforceable, only that particular provision or part so found, and not the entire
Agreement, will be inoperative.



     6. Non-admission. Nothing contained in this Agreement will be deemed or construed as
an admission of wrongdoing or liability on the part of the Company.



B-2









 





     7. Governing Law. All matters affecting this Agreement, including the validity
thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the
State of Texas applicable to contracts executed in and to be performed in that State.



     8. Arbitration. Any dispute or controversy arising under or in connection with this
Agreement or otherwise in connection with Executive’s employment by the Company that cannot be
mutually resolved by the parties to this Agreement and their respective advisors and
representatives shall be settled exclusively by arbitration in Houston, Texas in accordance with
the rules of the American Arbitration Association before one arbitrator of exemplary qualifications
and stature, who shall be selected jointly by an individual to be designated by the Company and an
individual to be selected by Executive or, if such two individuals cannot agree on the selection of
the arbitrator, who shall be selected by the American Arbitration Association.



     9. Notices. All notices or communications hereunder shall be in writing, addressed as
follows:


To the Company:



RRI Energy, Inc.

1000 Main Street

Houston, Texas 77002

Attn: General Counsel



To Executive:



At the most recent address of Executive on file with the Company.




     All such notices shall be conclusively deemed to be received and shall be effective (i) if
sent by hand delivery, upon receipt or (ii) if sent by electronic mail or facsimile, upon
confirmation of receipt by the sender of such transmission.



     EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND THAT HE FULLY KNOWS, UNDERSTANDS
AND APPRECIATES ITS CONTENTS, AND THAT HE HEREBY EXECUTES THE SAME AND MAKES THIS AGREEMENT AND THE
RELEASE AND AGREEMENTS PROVIDED FOR HEREIN VOLUNTARILY AND OF HIS OWN FREE WILL.



B-3









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	By: 	 
	 	Its: 	 
	 	 	 
	 	
 	 
	 	By: 	 
	 	 	 



B-4









 






	 	 	 	 	 



Exhibit C




FORM OF RELEASE BY THE COMPANY




     This Release of Claims (this “Agreement”) is entered into by Edward R. Muller
(“Executive”) and RRI Energy, Inc. (the “Company”), effective as of [DATE].



     In consideration of the promises and mutual obligations set forth in the Employment Agreement
between Executive and the Company, dated April 11, 2010 (the “Employment Agreement”) and
other good and valuable consideration, Executive and the Company agree as follows:



     1. General Release and Waiver of Claims.



     (a) Release. The Company and its subsidiaries and affiliates (the “Company
Releasors”) hereby irrevocably and unconditionally release and forever discharge Executive
personally and each of Executive’s heirs, executors, administrators, representatives, agents,
successors and assigns (collectively, the “Executive Releasees”) from any and all claims,
actions, causes of action, rights, judgments, obligations, damages, demands, accountings or
liabilities of whatever kind or character (collectively, “Claims”), including, without
limitation, any Claims under any federal, state, local or foreign law, that the Company Releasors
had, have, may have, or in the future may possess, arising out of Executive’s employment
relationship with and service as an employee, officer or director of the Company, and the
termination of such relationship or service; provided, however, that the Company
Releasors do not release, discharge or waive any Claims arising out of or resulting from
Executive’s fraud, gross negligence or other violation of law.



     (b) No Assignment. The Company represents and warrants that it has not assigned any
of the Claims being released under this Agreement.



     2. Proceedings. The Company has not filed, and agrees not to initiate or cause to be
initiated on its behalf, any complaint, charge, claim or proceeding against the Executive Releasees
before any local, state or federal agency, court or other body based on the Claims released under
this Agreement (a “Proceeding”) and agrees not to participate voluntarily in any
Proceeding.



     3. Remedies. The Company acknowledges and agrees that the remedy at law available to
the Executive for breach of any of the Company’s obligations under Paragraphs 1 and 2 of this
Agreement would be inadequate and that damages flowing from such a breach may not readily be
susceptible to being measured in monetary terms. Accordingly, the Company acknowledges, consents
and agrees that, in addition to any other rights or remedies that Executive may have at law or in
equity, Executive shall be entitled to seek a temporary restraining order or a preliminary or
permanent injunction, or both, without bond or other security, restraining the Company from
breaching its obligations under Paragraphs 1 and 2 of this Agreement. Such injunctive relief in
any court shall be available to Executive, in lieu of, or prior to or pending determination in, any
arbitration proceeding.



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     The Company understands that by entering into this Agreement it will be limiting the
availability of certain remedies that it may have against Executive and limiting also its ability
to pursue certain claims against Executive.



     4. Severability Clause. In the event any provision or part of this Agreement is found
to be invalid or unenforceable, only that particular provision or part so found, and not the entire
Agreement, will be inoperative.



     5. Non-admission. Nothing contained in this Agreement will be deemed or construed as
an admission of wrongdoing or liability on the part of Executive.



     6. Governing Law. All matters affecting this Agreement, including the validity
thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the
State of Texas applicable to contracts executed in and to be performed in that State.



     7. Arbitration. Any dispute or controversy arising under or in connection with this
Agreement or otherwise in connection with Executive’s employment by the Company that cannot be
mutually resolved by the parties to this Agreement and their respective advisors and
representatives shall be settled exclusively by arbitration in Houston, Texas in accordance with
the rules of the American Arbitration Association before one arbitrator of exemplary qualifications
and stature, who shall be selected jointly by an individual to be designated by the Company and an
individual to be selected by Executive or, if such two individuals cannot agree on the selection of
the arbitrator, who shall be selected by the American Arbitration Association.



     8. Notices. All notices or communications hereunder shall be in writing, addressed as
follows:


To the Company:



RRI Energy, Inc.

1000 Main Street

Houston, Texas 77002

Attn: General Counsel



To Executive:



At the most recent address of Executive on file with the Company.




     All such notices shall be conclusively deemed to be received and shall be effective (i) if
sent by hand delivery, upon receipt or (ii) if sent by electronic mail or facsimile, upon
confirmation of receipt by the sender of such transmission.



     THE COMPANY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND THAT IT FULLY KNOWS, UNDERSTANDS
AND APPRECIATES ITS CONTENTS, AND THAT IT HEREBY EXECUTES THE SAME AND MAKES THIS AGREEMENT AND THE
RELEASE AND AGREEMENTS PROVIDED FOR HEREIN VOLUNTARILY AND OF ITS OWN FREE WILL.



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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	By: 	 
	 	Its: 	 
	 	 	 
	 	
 	 
	 	By: Edward R. Muller 	 
	 	 	 
	 




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