|NRG ENERGY, INC. filed this Form 10-K on 03/01/2018|
NRG ENERGY, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY ASTERISKS, BE ACCORDED CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934.
(g) The Article and Section headings have been used solely for convenience, and are not intended to describe, interpret, define or limit the scope of this Agreement.
(h) Conflicts or discrepancies, errors, or omissions in this Agreement or the various documents delivered in connection with this Agreement will not be strictly construed against the drafter of the contract language, rather, they shall be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the Parties at the time of contracting.
(i) A reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time.
SALE OF MEMBERSHIP INTERESTS AND CLOSING
Section 2.01 Purchase and Sale. Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, all of the right, title and interest of Seller in and to the Acquired Interests, free and clear of all Liens, at the Closing on the terms and subject to the conditions set forth in this Agreement.
Section 2.02 Payment of Purchase Price. Upon the terms and subject to the conditions hereinafter set forth, in consideration of the delivery by Seller of the Acquired Interests, Purchaser shall by wire transfer of immediately available United States funds to the account(s) designated by Seller to Purchaser in writing at least three (3) Business Days prior to the Closing, pay to Seller at the Closing an amount equal to (i) one billion three hundred seventy five million dollars ($1,375,000,000) (the “Base Purchase Price”), plus (ii) the Zephyr Business Plan Adjustment Amount, if any, plus or minus (iii) the Patriot Adjustment Amount, if any, plus or minus (iv) the JL Additional Contribution Adjustment. The Base Purchase Price shall be adjusted, if at all, in accordance with Section 7.04 and Section 7.06 (such adjusted amount, the “Final Purchase Price”).
Section 2.03 Closing.
(a) The closing of the transactions described in Section 2.01 (the “Closing”) will take place at the offices of Jones Day, counsel to Seller, at 51 Louisiana Avenue, NW, Washington, DC, or at such other place as the Parties mutually agree, at 10 A.M. local time, on the first (1st) Business Day of the calendar month following the fulfillment or waiver of the conditions set forth in Article 9 and Article 10; provided, that such day is at least twelve (12) Business Days following the fulfillment or waiver of such conditions, otherwise the Closing will take place on the first Business Day of the next calendar month, or at such other time as the Parties mutually agree (subject in any case to the continued fulfillment or waiver of the conditions set forth in Article 9 and Article 10 on the date of the Closing).
(b) At the Closing, the following shall occur:
(i) Purchaser shall pay an amount equal to (A) the Base Purchase Price, plus (B) the Zephyr Business Plan Adjustment Amount, if any, plus or minus (C) the Patriot Adjustment Amount, if any, plus or minus (D) the JL Additional Contribution Adjustment, by wire transfer of immediately available funds to the account(s) designated by Seller to Purchaser in writing at least three (3) Business Days prior to the Closing; and
(ii) The Parties shall deliver, or cause to be delivered, to the other Parties the certificates and other deliverables contemplated by Article 9 and Article 10.
Section 2.04 Dispute Resolution by Neutral Auditor. With respect to matters which pursuant to the express terms of this Agreement may be referred to the Neutral Auditor under this Section 2.04, the following provisions shall apply: