|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.
solar investment tax credits, production tax credits, or other tax credits or benefits of a Project Company held by a DG Tax Equity Fund.
Section 8.05 Post-Closing Access; Preservation of Records. From and after the Closing, Purchaser shall make or cause to be made available to Seller all books, records and documents of Purchaser relating to the Business of the Company or the Business of NYLD (and the assistance of employees responsible for such books, records and documents) during regular business hours for (i) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Action, (ii) preparing reports to stockholders and Governmental Authorities or (iii) such other purposes for which access to such documents is reasonably necessary in connection with preparing and delivering any accounting or other statement provided for under this Agreement or otherwise, preparing Tax Returns, pursuing Tax refunds or responding to or disputing any Tax audit, or the determination of any matter relating to the rights and obligations of Seller or any of its Affiliates under this Agreement; provided, however, that access to such books, records, documents and employees shall not interfere with the normal operations of Purchaser and the reasonable out-of-pocket expenses of Purchaser incurred in connection therewith shall be paid by Seller; provided, further, that none of Seller, its Affiliates or their Representatives shall have any right to access or review any Tax Return of Purchaser or any of its Affiliates (including any consolidated, combined or unitary Tax Return including any such entity); provided, that, for the avoidance of doubt, that the foregoing limitation shall not limit Seller’s right to receive information from Purchaser, including Tax Returns filed by Purchaser (but not any Tax Return of Purchaser or any of its Affiliates (other than Purchaser)) to the extent that such information or Tax Return is necessary for Seller to contest a Tax claim for which Seller is liable. Notwithstanding anything herein to the contrary, Purchaser shall not be required to provide any access or information to Seller, its Affiliates or any of their respective Representatives which Purchaser reasonably believes it is prohibited from providing to Seller, its Affiliates or their respective Representatives by reason of applicable Law, which constitutes or allows access to information protected by attorney-client privilege, or which Purchaser is required to keep confidential or prevent access to by reason of any Contract with a third party or which would otherwise expose Purchaser or any of its Affiliates to a material risk of Liability. Notwithstanding anything to the contrary contained in this Section 8.05, if the Parties are in an adversarial relationship in litigation or arbitration, the furnishing of any documents or information in accordance herewith shall be solely subject to applicable rules relating to discovery and the remainder of this Section 8.05 shall not apply.
Section 8.06 Employee Matters.
(a) Offers of Employment and Employment Transfers.
(i) No later than ninety (90) days after the Effective Date, Purchaser may request that Seller cause the Company to offer employment, as required under Section 8.06(a)(iii) hereof, to one or more employees of Seller who are not otherwise included as a Business Employee on Schedule 4.16(a). Upon Seller’s consent to such request, each such employee shall become an “Additional Employee” by being added to Schedule 4.16(a) and identified as an “Additional Employee” on such schedule.
(ii) No later than sixty (60) days after the Effective Date, Purchaser may request that any Offer Employee included on Schedule 4.16(a) be removed from such schedule, which request shall not require the consent of Seller (such schedule, reflecting the Additional Employees under Section 8.06(a)(i) above and the removal of any Offer Employee, referred to herein as the “Final Employee Schedule”).
(iii) Within one hundred twenty (120) days after the Effective Date, Seller shall cause the Company to make offers of employment, effective upon the Closing, to each individual who, as of immediately prior to the Closing, is on the Final Employee Schedule and identified thereon as an Offer Employee or Additional Employee. The Company and Purchaser shall not be required to extend an offer to an individual who, immediately prior to the Closing, is not actively at work due to an unauthorized leave of absence but prior to such absence was on the Final Employee Schedule and identified as an Offer Employee