|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.
Business of the Company or otherwise applicable to any Business Employees, and no such Collective Bargaining Agreement is being negotiated. In addition, except as disclosed on Schedule 4.16(b), during the past three (3) years, (i) no petition has been filed or proceedings instituted by any labor union or other labor organization with any Governmental Authority seeking recognition as the bargaining representative of any Business Employee or group of Business Employees and (ii) no demand for recognition of Business Employees has been made by, or on behalf of, any labor union or other labor organization. To the Knowledge of Seller, there is no effort currently being made or threatened by, or on behalf of, any labor union or other labor organization to organize any Business Employees, and, to the Knowledge of Seller, no such activity has been conducted within the past three (3) years. No labor strike, slowdown, work stoppage, dispute, lockout or other material labor controversy involving Business Employees is in effect or, to the Knowledge of Seller, threatened, and none of the Company Entities has experienced any such labor controversy within the past three (3) years. No unfair labor practice charge or complaint involving Business Employees is pending or, to the Knowledge of Seller, threatened.
(c) None of the Company Entities has closed any plant or facility, effectuated any layoffs of employees or implemented any early retirement, separation or window program within the past three (3) years, nor have any of the Company Entities planned or announced any such action or program for the future. There has been no action, during the ninety (90) day period prior to the Effective Date, that would trigger notice or other obligations to any Business Employees under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §2109 et seq. or the regulations promulgated thereunder or similar Law.
(d) Schedule 4.16(d) contains a true and complete list of each Company Employee Plan, identifying thereon each such Company Employee Plan that is sponsored by any of the Company Entities, or to which any of them is, a party (each, a “Zephyr Employee Plan”). No Company Entity has ever sponsored an Employee Plan other than the Zephyr Employee Plans. There does not exist, nor do any circumstances exist, that could result in any Liability to Purchaser, or any entity that is an Affiliate of Purchaser after the Closing, due to the fact that any of the Company Entities were ERISA Affiliates of Seller or any of its subsidiaries (other than the Company Entities) prior to the Closing (“Controlled Group Liability”). No Company Entity participates in or contributes to, or has participated in or contributed to, any multiemployer plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”) or other plan subject to Title IV of ERISA, and no Company Entity has or could reasonably be expected to have any other Liabilities (contingent or otherwise), including any potential withdrawal liability, with respect to any Multiemployer Plan or other plan subject to Title IV of ERISA by association with any ERISA Affiliate. No Company Entity maintains or has any obligation to contribute to (or has any other liability with respect to) any funded or unfunded Company Employee Plans or other agreement or arrangement, in each case which provides or promises to provide post-retirement health or welfare benefits, other than as required under applicable Law. Except as expressly provided in this Agreement, no employment or benefits-related Liabilities arising out of or relating to any period before the Closing Date have been transferred to any of the Company Entities. All Zephyr Employee Plans have been established, maintained and administered in all material respects with their terms and applicable Law (including the applicable provisions of the Code and ERISA). There are no proceedings or audits pending, or to the Knowledge of Seller, threatened with respect to any Zephyr Employee Plan or the assets of any Zephyr Employee Plan or any related trust (other than routine claims for benefits).
(e) Except as set forth in Schedule 4.16(e), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein (whether alone or in connection with any other event) will (or could reasonably be expected to) (i) entitle any Business Employee to severance, retention, change in control or other similar payment or benefit, (ii) accelerate the time of payment or vesting or increase the amount of compensation due to any Business Employee, or (iii) require any contributions or payments to fund any obligations under any Zephyr Employee Plan. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein (whether alone or in connection with any other event) will (or could reasonably be expected to) result, separately or in the aggregate, in the