Exhibit 10.31.4
NRG GENERATING (U.S.) INC.
1997 STOCK OPTION PLAN
XXXXX OF NONEMPLOYEE DIRECTOR
NONQUALIFIED STOCK OPTION
Date of Grant: ______________________
THIS GRANT, dated as of the date of grant first stated above
(the "Date of Grant"), is delivered by NRG Generating (U.S.) Inc.
(the "Company") to _____________________ (the "Grantee"), who is
a director of the Company who is not an Employee of the Company
or a Subsidiary.
WHEREAS, the Board of Directors of the Company (the "Board")
on March 27, 1997 adopted the NRG Generating (U.S.) Inc. 1997
Stock Option Plan (the "Plan") effective as of May 1, 1997;
WHEREAS, the Plan provides for the granting of Nonqualified
Stock Options by the Committee to directors of the Company to
purchase shares of the Common Stock of the Company (the "Stock"),
in accordance with the terms and provisions thereof; and
WHEREAS, the Committee considers Grantee to be a person who
is eligible for a grant of Nonqualified Stock Options under the
Plan, and has determined that it would be in the best interest of
the Company to grant the Nonqualified Stock Options documented
herein.
NOW THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, the
Company, with the approval and at the direction of the Committee,
hereby grants to Grantee, as of the Date of Grant, an option to
purchase up to __________ shares of Stock at a price of
$___________ per share. The shares of stock purchasable upon
exercise of the Option are hereinafter sometimes referred to as
the "Option Shares." The Option is intended by the parties
hereto to be, and shall be treated as, a Nonqualified Stock
Option which is not subject to the provisions of Code Section
422.
2. Installment Exercise.
Subject to such further limitations as are provided herein, the
Option shall become exercisable in three (3) installments,
Xxxxxxx having the right hereunder to purchase from the Company
the following number of Option Shares upon exercise of the
Option, on and after the following dates, in cumulative fashion:
(i) on and after the first anniversary of the Date of Grant up
to one-third (ignoring fractional shares) of the total number of
Option Shares;
(ii) on and after the second anniversary of the Date of Xxxxx,
up to an additional one-third (ignoring fractional shares) of the
total number of Option Shares; and
(iii) on and after the third anniversary of the Date of Xxxxx,
the remaining Option Shares.
3. Termination of Option.
(a) The Option and all rights hereunder with respect thereto,
to the extent such rights shall not have been exercised, shall
terminate and become null and void after the expiration of ten
(10) years from the Date of Grant (the "Option Term").
(b) When the Grantee ceases to be a director of the Company,
the Option, to the extent not previously exercised, shall
terminate and become null and void immediately upon the
Separation Date, except in a case where the Grantee's service as
a director of the Company ceases by reason of Disability or death
or otherwise as follows. If the Grantee ceases to be a director
of the Company by reason of Disability or death, all unexercised
portions of the Option shall become immediately exercisable and
the Option may be exercised during the period beginning upon such
termination and ending one year after such date. In no event,
however, shall any such period extend beyond the Option Term. If
the Participant's service as a director of the Company terminates
for any other reason prior to the exercise of all portions of the
Option, the Participant shall have the right within three (3)
months of his Separation Date, but not beyond the expiration date
of the Option, to exercise such unexercised portions of the
Option.
(c) In the event of Xxxxxxx's death, the Option may be
exercised by Xxxxxxx's legal representative(s) as and to the
extent that the Option would otherwise have been exercisable by
Xxxxxxx, subject to the provisions of Section 3(b) hereof.
(d) Notwithstanding any other provisions set forth herein or in
the Plan, if Grantee shall: (i) commit any act of malfeasance or
wrongdoing affecting the Company, its Parents or Subsidiaries, or
(ii) engage in conduct that would warrant Grantee's removal for
cause (excluding general dissatisfaction with the performance of
Xxxxxxx's duties, but including any act of disloyalty or any
conduct clearly tending to bring discredit upon the Company, its
Parents or Subsidiaries), any unexercised portion of the Option
shall immediately terminate and be void.
4. Exercise of Options.
(a) Grantee may exercise the Option with respect to all or any
part of the number of Option Shares that are exercisable
hereunder by giving the Secretary of the Company written notice
of intent to exercise. The notice of exercise shall specify the
number of Option Shares as to which the Option is to be exercised
and date of exercise thereof, which date shall be at least five
(5) days after the signing of such notice unless an earlier time
shall have been mutually agreed upon.
(b) Full payment (in U.S. dollars) by Grantee of the Option
Price for Option Shares purchased shall be made on or before the
exercise date specified in the notice of exercise in cash or as
the Company may otherwise permit as further set forth in the
Plan. On the exercise date specified in Xxxxxxx's notice or as
soon thereafter as is practicable, the Company shall cause to be
delivered to Grantee, a certificate or certificates for the
Option Shares then being purchased (out of theretofore unissued
Stock or reacquired Stock, as the Company may elect) upon full
payment for such Option Shares. The obligation of the Company to
deliver Stock shall, however, be subject to the condition that if
at any time the Committee shall determine in its discretion that
the listing, registration or qualification of the Option or the
Option Shares upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or
in connection with, the Option or the issuance or purchase of
Stock thereunder, the Option may not be exercised in whole or in
part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any
conditions not acceptable to the Committee.
(c) If Grantee fails to pay for any of the Option Shares
specified in such notice or fails to accept delivery thereof,
Xxxxxxx's right to purchase such
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Option Shares may be terminated by the Company or the exercise of
the Option may be ignored, as the Committee in its sole
discretion may determine. The date specified in Grantee's notice
as the date of exercise shall be deemed the date of exercise of
the Option, provided that payment in full for the Option Shares
to be purchased upon such exercise shall have been received by
such date.
5. Adjustment of and Changes in Stock.
In the event of a reorganization, recapitalization, change of
shares, stock split, spin-off, stock dividend, reclassification,
subdivision, or combination of shares, merger, consolidation,
rights offering, or any other change in the corporate structure
of shares of capital stock of the Company, the Committee shall
make such adjustment as it deems appropriate in the number and
kind of shares of Stock subject to the Option or in such option
price; provided, however, that no such adjustment shall give
Grantee any additional benefits under the Option.
[Optional Changes of Control Provision
In the event of any Corporate Transaction or an event giving rise
to a Change in Control, the Option shall be fully vested,
nonforfeitable and become exercisable as of the date of the
Change in Control or Corporate Transaction or as otherwise
determined in accordance with Section 5.5(c) of the Plan.
However, in the case of a Corporate Transaction, the Committee
may determine that the Option will not be so accelerated if and
to the extent (i) such Option is either to be assumed by the
successor or parent thereof or to be replaced with a comparable
Option to purchase shares of the capital stock of the successor
corporation or parent thereof, or (ii) such Option is to be
replaced with a cash incentive program of the successor
corporation that preserves the option spread existing at the time
of the Corporate Transaction and provides for subsequent payment
in accordance with the same vesting schedule applicable to such
Option.
In the event of a Corporate Transaction described in clauses (i)
or (ii) of Section 5.5(b) of the Plan, the Committee may, upon no
less than 60 days notice to the optionee (an "Acceleration
Notice") determine that such optionee's Options will terminate as
of the effective date of such Corporate Transaction, in which
event such Options shall be fully vested, nonforfeitable and
become exercisable immediately as of the date of such
Acceleration Notice. In the event of a Change in Control or
Corporate Transaction described in clauses (a)(i), (a)(ii) and
(b)(iii) of Section 5.5 of the Plan or in the event the
Acceleration Notice is not timely given, the Option shall remain
exercisable for the remaining term of the Option notwithstanding
the provisions of Article V of the Plan, subject to any
limitations thereto which may be applicable to Incentive Stock
Options. In the event of a Corporate Transaction described in
clauses (a)(i)(iii), b(i) or (b)(ii) of Section 5.5 of the Plan,
which is preceded by a timely Acceleration Notice, the Option
shall terminate as of the effective date of the Corporate
Transaction described therein. In no event shall the Option be
exercised after the expiration of the Option Term.]
6. No Rights as Shareholders.
Grantee shall have no rights as a shareholder with respect
thereto unless and until certificates for shares of Common Stock
are issued to him or her.
7. Non-Transferability of Option.
During Xxxxxxx's lifetime, this Option shall be exercisable
only by Grantee or his or her guardian or legal representative.
8. Amendment of Option.
The Option may be amended by the Committee at any time (i) if
the Committee determines, in its sole discretion, that amendment
is necessary or advisable in light of any addition to or change
in the Code or in the regulations issued thereunder, or any
federal or state securities law or other law of regulation, which
change occurs after the Date of Grant and by its terms applies to
the Option; or (ii) other than in the circumstances described in
clause (i), with the consent of Grantee.
9. Notice.
Any notice to the Company provided for in this instrument shall
be addressed to it in care of its Secretary at its executive
offices and any notice to
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Grantee shall be addressed to Grantee at the address below. Any
notice shall be deemed to be duly given if and when properly
addressed and posted by registered or certified mail, postage
prepaid.
10. Incorporation of Plan by Reference.
The Option is granted pursuant to the Plan, the terms and
definitions of which are incorporated herein by reference, and
the Option shall in all respects by interpreted in accordance
with the Plan.
11. Governing Law.
To the extent that federal law shall not be held to have
preempted local law, this Option shall be governed by the laws of
the State of Delaware. If any provision of the Option shall be
held invalid or unenforceable, the remaining provisions hereof
shall continue in full force and effect.
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IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this Grant of Nonqualified Stock
Option, and Xxxxxxx has placed his or her signature hereon,
effective as of the Date of Xxxxx.
NRG Generating (U.S.) Inc.
By:
Member of the Committee
By:
Member of the Committee
By:
Xxxxxxx X. Xxxxxxx
Vice President and Chief
Financial
Officer
GRANTEE
Signature___________________________
Name:
(Print)
Address:
_____________________________
_____________________________
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