|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.
included in the Seller Disclosure Schedules on the Effective Date for all purposes hereunder, including for purposes of Section 13.01 and for purposes of determining whether the conditions to closing set forth in Section 9.01 have been satisfied.
Section 7.04 Conduct of Business.
(a) Seller covenants and agrees that, except (i) as otherwise expressly contemplated by this Agreement (including as described on Schedule 7.04(b)) and the other matters contemplated by the other Schedules and Exhibits hereto including Exhibit F (Zephyr 2018 Business Plan), (ii) for the effect of the announcement and consummation of the transactions contemplated hereby, or (iii) as otherwise approved in writing by Purchaser (which approval shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, Seller shall cause the Company Entities to be operated in the ordinary course of business and Good Industry Practice, and shall use commercially reasonable efforts to preserve, maintain and protect the assets of the Company Entities and the NYLD Entities and the Business of the Company and the Business of NYLD and maintain existing or satisfactory relations with Governmental Authorities and customers, suppliers, service providers, creditors, tax equity partners and lessors having significant business dealings with them, and keep available the services of the Company Entities’ key employees; provided, that such efforts shall not include any requirement or obligation to make any payment or assume any Liability not otherwise required to be paid or assumed by the terms of an existing Contract or offer or grant any financial accommodation or other benefit not otherwise required to be made by the terms of an existing Contract; provided, further, that the Company Entities shall be permitted to make Permitted Intercompany Transfers.
(b) Without limiting Section 7.04(a), except as (A) set forth on Schedule 7.04(b), (B) otherwise contemplated by this Agreement and the Schedules and Exhibits hereto including Exhibit F (Zephyr 2018 Business Plan), (C) required by applicable Law, or (D) with the express written approval of Purchaser (which approval shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, Seller shall not (with respect to the Business of the Company or any Company Entity) and shall cause the Company Entities not to:
(i) adopt any change in its certificate of incorporation or by-laws or other applicable governing instruments, other than ministerial or administrative changes that are not adverse to the interests of Purchaser;
(ii) (A) merge or consolidate any of the Company Entities with any other Person, or restructure, reorganize or completely or partially liquidate any of the Company Entities or, except for any such transactions among wholly-owned Affiliates of the Company, or (B) commence or file any petition seeking (x) liquidation, reorganization or other relief under any U.S. federal, U.S. state or other bankruptcy, insolvency, receivership or similar Law or (y) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official;
(iii) except as set forth in the Zephyr 2018 Business Plan, make any acquisition (whether by merger, consolidation, acquisition of stock or assets or otherwise) of any interest in any Person or any business, line of business or division thereof (which for the avoidance of doubt shall not include acquisitions of assets that are covered by clause (iv) below);
(iv) except as set forth in the Zephyr 2018 Business Plan, make any acquisition of assets, operations or projects, other than (A) acquisitions of supplies in the ordinary course of business or (B) acquisitions pursuant to Contracts in effect as of the Effective Date (copies of which have been made available to Purchaser);
(v) except as required by Section 7.13 or as set forth in the Zephyr 2018 Business Plan, issue, sell, pledge, grant, transfer or encumber or otherwise dispose of or redeem, repurchase or otherwise