Contribution Agreement

EXHIBIT 10.2 Contribution Agreement (Toshiba) By and Between Toshiba Corporation And NRG Nuclear Development Company LLC ** ** This Portion has been redacted pursuant to a confidential treatment request.


TABLE OF CONTENTS ARTICLE I DEFINITIONS 1.1 Definitions 1 1.2 Construction 1 ARTICLE II CONTRIBUTION 2.1 Contribution by Toshiba 2 ARTICLE III CLOSING 3.1 Closing 2 3.2 Closing Conditions 2 3.3 Closing Deliveries 4 3.4 Completion of Due Diligence 6 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF TOSHIBA 4.1 Organization; Power of Authority 6 4.2 Execution and Delivery 6 4.3 Non-Contravention 6 4.4 Brokers, Finders and Investment Bankers 7 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY 5.1 Organization; Power of Authority 7 5.2 Execution and Delivery 7 5.3 Non-Contravention 7 5.4 Brokers, Finders and Investment Bankers 8 5.5 Legal Proceedings 8 5.6 NRG Contribution Agreement 8 ARTICLE VI ADDITIONAL AGREEMENTS AND COVENANTS 6.1 Capital Calls 8 6.2 Transaction Costs 8 6.3 Indemnifications by Toshiba 8 6.4 Indemnifications by the Company 9 6.5 Indemnification Procedure 9 6.6 Liability Limits 11 6.7 Exclusive Remedy 11 6.8 Consequential Damages 11 6.9 Termination 12 Contribution Agreement
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ARTICLE VII GENERAL 7.1 Successors and Assigns 12 7.2 Amendments 12 7.3 No Merger 13 7.4 Further Assurances 13 7.5 Notices 13 7.6 Entire Agreement 14 7.7 Governing Law 14 7.8 Dispute Resolution 14 7.9 Severability 14 7.10 Counterparts 14 7.11 Remedies 15 EXHIBITS A - Defined TermsB - Company LLC AgreementC - Arbitration Procedures Contribution Agreement
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SCHEDULES Schedule 4.3 Toshiba Non-ContraventionSchedule 5.3 Company Non-ContraventionSchedule 5.5 Legal Proceedings Contribution Agreement
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GLOSSARY OF DEFINED TERMS The page or Exhibit location of the definition of each capitalized term used in this Agreement is set forth in this Glossary: Affiliate Exhibit AAgreement 1Arbitration Notice Exhibit CArbitrator Exhibit CBasket Amount 11Business Day Exhibit ACFIUS 4Charter Documents Exhibit AClaim 9Closing 2Closing Date 2Company 1Company LLC Agreement 5Company Parties 8Contributing Parties 9CPR Exhibit CDispute Exhibit CDisputing Party Exhibit CEffective Date 1Exon-Florio 4Genco 1Governmental Authority Exhibit AIndemnified Party 9Indemnifying Party 9Knowledge of the Company Exhibit ALaw Exhibit ALitigation Counsel 9Losses Exhibit ANRC Exhibit ANRG 2NRG Contribution Agreement 1Participation Agreement Exhibit AParties 1Party 1Person Exhibit AProject Land Exhibit ARules Exhibit CSEO Exhibit CSouth Texas 1South Texas Plant Site Exhibit ASouth Texas Project Exhibit AST3&4 Project Exhibit AToshiba 1Toshiba Member Exhibit ATransaction Documents Exhibit ATribunal Exhibit C Contribution Agreement
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CONTRIBUTION AGREEMENT
(Toshiba) This CONTRIBUTION AGREEMENT (Toshiba) (this " Agreement" ) is made as of ** (the " Effective Date" ), by and between Toshiba Corporation, a Japanese corporation (" Toshiba" ) and NRG Nuclear Development Company LLC, a Delaware limited liability company (the " Company" ). Toshiba and the Company are individually referred to herein as a " Party" and collectively as the " Parties ." RECITALS WHEREAS , Texas Genco Holdings, Inc. (" Genco" ), a Texas corporation, and NRG South Texas LP, a Texas limited partnership (" South Texas" ) pursuant to a Contribution Agreement (NRG) ** (the " NRG Contribution Agreement" ) have agreed to contribute to the Company certain development rights related to the development of additional nuclear generation facilities on the Project Land, as well as certain intangibles related to the nuclear energy generation industry and other rights and assets, as more fully described in the NRG Contribution Agreement (the " Contributed Assets" ); and WHEREAS , the Parties desire to enter into this Agreement to evidence the agreement of Toshiba to contribute (directly or indirectly through the Toshiba Member) cash to the Company on the terms hereof. NOW, THEREFORE, in consideration of the premises, the agreements and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENTS ARTICLE I
DEFINITIONS 1.1 Definitions. In addition to the terms defined in the body of this Agreement, capitalized terms used herein shall have the meanings given to them in Exhibit A . The Glossary of Defined Terms, which follows the Table of Contents, sets forth the location in this Agreement of the definition for each capitalized term used herein. 1.2 Construction. Unless the context requires otherwise: (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter; (b) each reference to an Article or Section refers to such Article or Section of this Agreement; (c) each reference to a Schedule or an Exhibit refers to such Schedule or Exhibit attached to this Agreement, which is made a part hereof for all purposes; (d) each reference to a Law refers to ** This Portion has been redacted pursuant to a confidential treatment request. Contribution Agreement
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such Law as it may be amended from time to time, and each reference to a particular provision of a Law includes any corresponding provision of any succeeding Law; (e) the word " including" means " including, but not limited to" ; and (f) each reference to money refers to the legal currency of the United States of America. ARTICLE II
CONTRIBUTION 2.1 Contribution by Toshiba. Subject to and in accordance with the terms and conditions of this Agreement, at the Closing, Toshiba shall (a) contribute to the Company the Toshiba Initial Contribution (as defined in the Company LLC Agreement) of $50,000,000 and (b) be committed to contribute the subsequent cash investments of an additional $250,000,000 (for an aggregate investment of $300,000,000) described in Section 6.1 in exchange for 12% of the " Class A Membership Units" and 12% of the " Class B Membership Units" of the Company to be obtained by Toshiba or the Toshiba Member (as applicable) on execution of, and pursuant to the terms of, the Company LLC Agreement. ARTICLE III
CLOSING 3.1 Closing. The consummation of the actions described in Article II (the " Closing" ) shall be held at a location selected by the Parties, or if not otherwise selected at the offices of South Texas at 1301 McKinney, Suite 2300, Houston, Texas 77010 on a date that is five (5) Business Days after satisfaction of the conditions set forth in Section 3.2 , other than those that can only be satisfied as of the Closing Date (or such other date as the Parties may agree in writing) (the " Closing Date" ) and shall be deemed to have occurred at 11:59 p.m., central daylight time. 3.2 Closing Conditions. The obligation of each of the Parties to proceed with the Closing is subject to the following: (a) Toshiba shall have completed its review and due diligence of the ST3&4 Project and the Contributed Assets and confirm the valuations implied by the transactions contemplated by this Agreement and shall not have timely provided to the Company in writing the notice contemplated by Section 3.4 that the foregoing conditions have not been satisfied; (b) the Contributed Assets shall have been contributed to the Company in accordance with the terms of the NRG Contribution Agreement and there shall: (i) be no then existing defaults by any party to the NRG Contribution Agreement, or (ii) have been no breaches of any of the representations and warranties of any party to the NRG Contribution Agreement; Contribution Agreement
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(c) there shall exist no agreements between (i) the Company and (ii) NRG Energy, Inc. (" NRG" ) or any Affiliates of NRG, other than this Agreement, the NRG Contribution Agreement and any other agreement expressly consented to by Toshiba in writing; (d) Toshiba and the Toshiba Member (if applicable) shall have received a certificate, dated as of the Closing Date and duly executed by an officer of each of NRG and the Company as to the foregoing Section 3.2(c) ; (e) Toshiba and the Toshiba Member (if applicable) shall have received a certificate, dated as of the Closing Date and duly executed by an officer of each of NRG and the Company that there: (i) have been no amendments or modifications to the NRG Contribution Agreement by the parties thereto that would represent a breach of the representation and warranty set forth in Section 5.6 of this Agreement; and (ii) have been no express or implied waivers of the NRG Contribution Agreement by any party thereto, except in each case of (i) and (ii) those consented to by Toshiba; (f) the accuracy in all material respects of the representations and warranties hereunder of the other Party hereto and the compliance by such other Party with its material obligations hereunder; (g) the obtaining of all approvals and consents set forth on Schedule 4.3 or 5.3 , or with respect to such matters that under the applicable Law do not require consent but require that the Parties wait an amount of time prior to the Closing, the passage of the applicable amount of time; (h) there shall be no effective injunction, writ or preliminary restraining order or any order of any nature issued by a Governmental Authority of competent jurisdiction to the effect that the transactions contemplated hereby may not be consummated, no proceeding or lawsuit shall have been commenced by any Governmental Authority for the purpose of obtaining any such injunction, writ or preliminary restraining order and no written notice shall have been received from any Governmental Authority indicating an intent to restrain, prevent, materially delay or restructure the transactions contemplated hereby, in each case where the Closing would (or would be reasonably likely to) result in a material fine or penalty payable by a Party or a material restriction on a Party' s operations as a result of such matter; Contribution Agreement
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(i) The Company and Toshiba shall have agreed on the provisions of, and the Company shall have adopted, a management and employee profit participation incentive plan; (j) The Company ** shall have agreed with Toshiba in writing on an interest ** rate for the **; (k) The Parties shall have submitted to the Committee on Foreign Investment in the United States of America (" CFIUS" ) a joint notification under the Exon-Florio Amendment to the Defense Production Act of 1950 (" Exon-Florio" ) and any other submissions under Exon-Florio that are required to be made in connection with this Agreement and the transactions contemplated hereby as soon as practicable following the execution of this Agreement, and CFIUS shall have notified the Parties in writing that a determination has been made that there are no issues of national security sufficient to warrant investigation under Exon-Florio, or, if applicable, the President of the United States of America shall have made a decision not to block the transaction; (l) no fewer than 31 calendar days shall have elapsed from the Effective Date; and (m) NRG and Toshiba shall have agreed on: (i) with respect to the budget for the Company for the twenty-four (24) months following the Closing, to be attached as Exhibit D to the Company LLC Agreement, (A) prior to March 31, 2008, the general and administrative portion of such budget and (B) the remaining portion of such budget; and (ii) the percentage margin over project costs (other than profit, contingency and general and administrative costs) that will cover collectively profit and contingency in the EPC contract for the ST3&4 Project no later than May 2, 2008; provided, however, the parties will work in good faith to reach agreement as early as March 31, 2008. For the avoidance of doubt, the percentage margin will not cover general and administrative costs. 3.3 Closing Deliveries. (a) At the Closing, Toshiba or the Toshiba Member (as applicable) shall execute and deliver, as applicable, to the Company the following documents, where the execution or delivery of documents is ** This portion has been redacted pursuant to a confidential treatment request. Contribution Agreement
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contemplated, and shall take or cause to be taken the following actions, where the taking of action is contemplated: (i) The Toshiba Initial Contribution paid to the Company by wire transfer of immediately available funds to an account of the Company specified in writing by the Company at least 5 Business Days prior to the Closing Date; (ii) The Amended and Restated Operating Agreement of the Company in the form of Exhibit B (the " Company LLC Agreement" ), duly executed by Toshiba or the Toshiba Member (as applicable); (iii) A certificate, duly executed by authorized officer of Toshiba, certifying to the Company the truth as of the Closing of the representations and warranties of such entity as set forth in Article IV hereof; and (iv) Such other instruments and documents as are reasonably necessary to effect the transactions contemplated hereby to occur at Closing. (b) At the Closing, the Company shall execute and deliver, as applicable, to Toshiba the following documents, where the execution or delivery of documents is contemplated, and shall take or cause to be taken the following actions, where the taking of action is contemplated: (i) The Company LLC Agreement, duly executed by each member of the Company that is an Affiliate of Genco; (ii) A certificate, duly executed by authorized officer of the Company, certifying to Toshiba the truth as of the Closing of the representations and warranties of such entity as set forth in Article V hereof; and (iii) Such other instruments and documents as are reasonably deemed necessary to effect the transactions contemplated hereby to occur at Closing. Contribution Agreement
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3.4 Completion of Due Diligence. Toshiba shall undertake and complete its review of the matters described in Section 3.2(a) such that it shall provide to the Company on or before March 31, 2008 either (a) a notice in writing that the condition in Section 3.2(a) has been satisfied, or (b) a notice that it is not satisfied, in Toshiba' s sole discretion, with the results of its review of the materials. If a notice is not timely sent under (a) or (b) above, then Toshiba will be deemed to have given the notice under (b) above. ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TOSHIBA Toshiba hereby represents and warrants to the Company as of the date hereto and as of the Closing as follows (provided that such representations and warranties regarding the Toshiba Member shall only be made and deemed given if Toshiba invests in the Company through the Toshiba Member): 4.1 Organization; Power of Authority. Each of Toshiba and the Toshiba Member is (or, in the case of the Toshiba Member, shall be prior to Closing) duly formed (as applicable), validly existing, and (if applicable) in good standing under the Law of the jurisdiction of its formation. If required by applicable Law, each of Toshiba and the Toshiba Member is (or, in the case of the Toshiba Member, shall be prior to Closing) duly qualified and (if applicable) in good standing in the jurisdiction of its principal place of business, if different from its jurisdiction of formation, and Toshiba and the Toshiba Member has (or, in the case of the Toshiba Member, shall have prior to Closing) full power and authority to execute and deliver this Agreement and the other Transaction Documents, in each case to which it is contemplated to be a party, and to perform its obligations hereunder and thereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, or beneficiaries, necessary for the due authorization, execution, delivery, and performance of this Agreement and the other Transaction Documents (in each case to which it is contemplated to be a party) have been duly taken . 4.2 Execution and Delivery. Toshiba has duly executed and delivered this Agreement, and it constitutes the legal, valid and binding obligation of Toshiba enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity) . 4.3 Non-Contravention. Each of Toshiba' s and the Toshiba Member' s authorization, execution, delivery, and performance of this Agreement and the other Transaction Documents to which it is contemplated to be a party does not and will not (a) conflict with, or result in a breach, default or violation of, (i) the Charter Documents of Toshiba or the Toshiba Member, (ii) any contract or agreement to which Toshiba or the Toshiba Member is a party or is otherwise subject or (iii) any Law to which Toshiba or the Toshiba Member is subject or (b) ...