|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.
Section 13.09 Indemnity Treatment. Any amount of indemnification payable pursuant to the provisions of this Article 13 shall to the extent permitted by applicable Law, be treated as an adjustment to the Final Purchase Price.
Section 13.10 Indemnification Reduction Amounts. The amount which an Indemnifying Party is or may be required to pay to an Indemnified Party in respect of damages for which indemnification is provided under this Agreement shall be reduced by any amounts actually received (including amounts received under insurance policies) by or on behalf of any Indemnified Party or its Affiliates from third parties (such amounts are collectively referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party or its Affiliates receives any Indemnity Reduction Amounts in respect of a claim for which indemnification is provided under this Agreement after the full amount of such claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such claim, then the Indemnified Party shall promptly remit to the Indemnifying Party an amount equal to the excess (if any) of (i) the amount theretofore paid by the Indemnifying Party in respect of such claim, less (ii) the amount of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. An insurer or other third party who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to any benefit they would not be entitled to receive in the absence of the indemnification provisions by virtue of the indemnification provisions hereof.
Section 13.11 No Solicitation. From the Effective Date until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Seller shall not, and shall cause the Company, any Subsidiary, any of its other Affiliates or any of its or their Representatives not to, directly or indirectly, (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to be terminated, and shall cause the Company, any Subsidiary, any of its other Affiliates, and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person concerning (a) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company, any Subsidiary or a NYLD Entity; (b) the issuance or acquisition of equity securities of the Company, any Subsidiary or a NYLD Entity; or (c) the sale, lease, exchange or other disposition of any significant portion of the Company’s, any Subsidiary’s or a NYLD Entity’s assets.
Section 14.01 Termination. This Agreement may be terminated at any time prior to the Closing as follows:
(a) by mutual written consent of Purchaser and Seller;
(b) by either Seller or Purchaser if the Closing has not occurred on or before November 6, 2018 (the “Termination Date”); provided, that if any of the conditions set forth in Article 9 or Article 10 have not been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing and that would have been satisfied if the Closing were to have occurred by the Termination Date), and each of Purchaser and Seller reasonably believe that such conditions will be satisfied by December 31, 2018, the Termination Date will be extended to December 31, 2018; provided, further, that any additional commitment