|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) Purchaser and Seller intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Continuing Employee that is consistent with the requirements of this Section 8.06 and that each such Continuing Employee shall have continuous employment immediately before and immediately after the Closing.
(h) Notwithstanding anything in this Section 8.06 to the contrary, Seller and Purchaser acknowledge and agree that the transactions contemplated by this Agreement constitute an “Eligible Termination” for purposes of awards under Seller’s Amended and Restated Long Term Incentive Plan and Seller’s Phantom and Long Term Incentive Plan, but Seller and Purchaser further acknowledge and agree that any vesting that results from such “Eligible Termination” or otherwise shall not be a Liability, obligation, responsibility, cost or expense of Purchaser. All shares of common stock of Seller that are held in the account of any Continuing Employee under the Seller’s Employee Stock Purchase Plan as of immediately prior to the Closing shall be released from any sales restrictions to the Continuing Employee effective as soon as possible following the Closing.
(i) Seller shall pay and be responsible for all bonuses that are payable to employees or service providers of Seller or its Affiliates providing services to the Company Entities in respect of the 2017 calendar year.
(j) No provision in this Section 8.06, whether express or implied, shall create any third party beneficiary or other rights in any employee or former employee of Purchaser, Seller, any Company Entity or any of their respective Subsidiaries or Affiliates (including any beneficiary or dependent thereof), any other participant in any Company Employee Plan or any other Person; (ii) create any rights to continued employment with Purchaser, Seller, any Company Entity or any of their respective Subsidiaries or Affiliates or in any way limit the ability of Purchaser, Seller, any Company Entity or any of their respective Subsidiaries or Affiliates to terminate the employment of any individual at any time and for any reason; or (iii) constitute or be deemed to constitute an amendment to any Company Employee Plan or any other employee benefit plan, program, policy, agreement or arrangement sponsored or maintained by Purchaser, Seller, any Company Entity or any of their respective Subsidiaries or Affiliates.
Section 8.07 Use/Removal of Trademarks. Purchaser acknowledges and agrees that it has and, upon consummation of the transactions contemplated hereby shall have, no right, title, interest, license, or any other right whatsoever to use the trademarks owned by Seller or its Affiliates containing “NRG Energy” or “NRG” (collectively, the “Seller Marks”), except as provided herein. Purchaser shall promptly after the Closing Date but in no event later than one hundred eighty (180) days after the Closing Date, cease and discontinue all uses of the Seller Marks and remove or permanently cover any Seller Marks from the assets of the Company Entities or the NYLD Entities that are removable. Seller hereby grants to Purchaser a non-exclusive license to use the Seller Marks during such one hundred eighty (180) day period, solely for purposes consistent with “phase out” use and in a manner consistent with past practice. NRG will not seek to terminate the NRG/NYLD Trademark License Agreement before the end of such one hundred eighty (180) day period. Notwithstanding anything in this Section 8.07 or the NRG/NYLD Trademark License Agreement to the contrary, Purchaser will not intentionally hold itself out to the market or customers, conduct any business or offer any goods or services under any Seller Marks after the Closing Date. Nothing in this Section 8.07 shall preclude the Company Entities from using the Seller Marks at any time after the Closing Date in legal or business documents and records, as required by any applicable Laws or as otherwise reasonably necessary or appropriate to describe their historical relationship with Seller.
Section 8.08 Certain Acquisition Support. In the event that, any time after the Closing (a) all of the conditions to NRG Yield Operating LLC’s obligations to complete the Closing (as such term is defined under the Carlsbad PSA) have been satisfied pursuant to the Carlsbad PSA, but NRG Yield Operating LLC, due to its inability to pay the purchase price, has as required by the Carlsbad PSA assigned the Carlsbad PSA to