|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.
its Representatives or any other Person on its or their behalf to seek or obtain, any monetary recovery or monetary award or any monetary damages of any kind against Purchaser in excess of the Purchaser Termination Fee.
(b) In addition to the foregoing, no termination of this Agreement shall affect the obligations of the parties hereto set forth in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement in accordance with their terms. Subject to Section 13 of the Confidentiality Agreement, upon termination of this Agreement by Purchaser or Seller for any reason, Purchaser shall return or destroy (at Purchaser’s election) all documents and other materials of Seller relating to the Company and the Subsidiaries, the assets of the Company and the Subsidiaries and the transactions contemplated hereby. Subject to Section 13 of the Confidentiality Agreement, each Party shall also return to the other Party or destroy (at the returning/destroying Party’s election) any information relating to the Parties to this Agreement furnished by one Party to the other, whether obtained before or after the execution of this Agreement. All information received by Purchaser with respect to the Company, the Subsidiaries, the assets of the Company, the assets of the Subsidiaries or Seller shall remain subject to the provisions of Section 15.05.
(c) If (i) Seller has the ability to terminate this Agreement pursuant to Section 14.01(d), (ii) all of the conditions set forth in Article 9 and Article 10 have been satisfied, or in the case of Article 10 irrevocably waived by Seller, other than those conditions that require deliveries or are tested at the time of Closing, which conditions would have been satisfied if the Closing had occurred, (iii) Seller has confirmed by written notice to Purchaser that it is ready, willing and able to consummate the Closing notwithstanding its termination right set forth in Section 14.01(d), (iv) Purchaser fails to consummate the Closing within the later of three (3) Business Days following the delivery of such notice and the date Closing was required to occur pursuant to Section 2.03(a), and (v) Seller therefore elects to terminate this Agreement pursuant to Section 14.01(d), then Purchaser shall pay to an account designated by Seller at least two (2) Business Days prior to the date of payment, by wire transfer of immediately available funds within five (5) Business Days after the date of such termination, an amount equal to ninety-six million two hundred fifty thousand dollars ($96,250,000) (the “Purchaser Termination Fee”). Upon termination of this Agreement pursuant to Section 14.01(d) under the circumstances in which the Purchaser Termination Fee is payable, Seller’s right to receive the Purchaser Termination Fee shall be the sole and exclusive remedy of Seller and its Affiliates against Purchaser and its Affiliates for any Losses suffered as a result of any failure to perform under this Agreement or failure of the Closing to be consummated in connection with the transactions contemplated by this Agreement.
(d) Without limiting or otherwise affecting other remedies that may be available to Purchaser, in the event of the termination of this Agreement pursuant to Section 14.01(c) or pursuant to Section 14.01(f), Seller shall pay to an account designated by Purchaser at least two (2) Business Days prior to the date of payment, by wire transfer of immediately available funds within five (5) Business Days following receipt of an invoice therefor all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment banks, advisors and consultants to Purchaser or their respective Affiliates, and all out-of-pocket fees and expenses of financing sources for which Purchaser or its Affiliates may be responsible) incurred by Purchaser or its Affiliates in connection with this Agreement and the transactions contemplated hereby, up to an aggregate maximum amount of ***** ****** dollars ($*********);
(e) Each of Seller and Purchaser acknowledges that the agreements contained in this Section 14.02 are an integral part of the transactions contemplated hereby and that, without these agreements, neither Seller nor Purchaser would have entered into this Agreement. Each of the Parties acknowledges that the Purchaser Termination Fee is not a penalty, but is liquidated damages, in a
reasonable amount that will compensate Seller in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance