Exhibit 10.31.2
NRG GENERATING (U.S.) INC.
1997 STOCK OPTION PLAN
GRANT OF INCENTIVE 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 _____________________ ("Grantee"), who is 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") to be effective as of May 1, 1997,
and the shareholders of the Company approved the Plan on
, 1997;
WHEREAS, the Plan provides for the granting of Incentive
Stock Options by the Committee to directors, officers and key
employees of the Company (excluding officers and directors who
are not employees) 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 Incentive Stock Options under the
Plan, and has determined that it would be in the best interest of
the Company to grant the Incentive 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, its Fair Market Value as of the Date of
Grant. 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, an Incentive Stock Option under Code Section
422.
2. Installment Exercise.
Subject to such further limitations as are provided herein, the
Option shall become exercisable in three (3) installments,
Grantee 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 Grant,
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 Grant,
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) Upon the occurrence of Grantee's ceasing for any reason to
be employed by 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
termination of Grantee's employment is by reason of retirement,
Disability or death or otherwise as follows. Upon a termination
of Grantee's employment 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 the event of any other termination, the Option may be
exercised within the three-month period following the date of
retirement, but only to the extent that the Option was
outstanding and exercisable upon the date of such retirement. In
no event, however, shall any such period extend beyond the Option
Term.
(c) In the event of Grantee's death, the Option may be
exercised by Grantee's legal representative(s) as and to the
extent that the Option would otherwise have been exercisable by
Grantee, subject to the provisions of Section 3(b) hereof.
(d) A transfer of Grantee's employment between the Company and
its Parents or Subsidiaries shall not be deemed to be a
termination of Grantee's employment.
(e) 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,
(ii) breach any covenant not to compete, or employment contract,
with the Company, its Parents or Subsidiaries), or (iii) engage
in conduct that would warrant Grantee's discharge for cause
(excluding general dissatisfaction with the performance of
Grantee'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 Grantee'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.
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(c) If Grantee fails to pay for any of the Option Shares
specified in such notice or fails to accept delivery thereof,
Grantee's right to purchase such 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 Change of Control Provisions
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)(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. Fair Market Value.
As used herein, the term "Fair Market Value" shall mean:
(a) If the Common Stock is listed on any established stock
exchange or a national market system, including, without
limitation, the Nasdaq National Market, its fair market value
shall be the average, over the twenty (20) trading days preceding
the date of the grant of an option, of the closing selling price
for such stock on the principal securities exchange or national
market system on
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which the Common Stock is at the time listed for trading. If
there are no sales of Common Stock on that date, then the closing
selling price for the Common Stock on the next preceding day for
which such closing selling price is quoted shall be determinative
of fair market value; or,
(b) If the Common Stock is not traded on an exchange or a
national market system, its fair market value shall be determined
in good faith by the Committee, and such determination shall be
conclusive and binding on all persons.
In no event shall the Fair Market Value equal less than the par
value of the Common Stock.
7. 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.
8. Non-Transferability of Option.
During Grantee's lifetime, this Option shall be exercisable
only by Grantee or his or her guardian or legal representative.
9. Employment Not Affected.
The grant of the Option hereunder shall not be construed as
conferring on Grantee any right to continued employment, and
Grantee's employment may be terminated without regard to the
effect which such action might have upon him as a holder of this
Option.
10. 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.
11. 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 Grantee shall be addressed to Grantee
at the current address shown on the payroll records of the
Employer. Any notice shall be deemed to be duly given if and
when properly addressed and posted by registered or certified
mail, postage prepaid.
12. 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.
13. 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 Incentive Stock
Option, and Grantee has placed his or her signature hereon,
effective as of the Date of Grant.
NRG Generating (U.S.) Inc.
By:________________________________
Member of the Committee
By:________________________________
Member of the Committee
By:________________________________
Timothy P. Hunstad
Vice President and Chief
Financial
Officer
GRANTEE
Signature__________________________
Name:______________________________
(Print)
Address:
_____________________________
_____________________________