EXHIBIT 5.1
December 21, 2005
NRG Energy, Inc.
211 Carnegie Center
Princeton, NJ 08540
Re: NRG Energy, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to NRG Energy, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement"), to be filed on the date hereof by the
Company with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the issuance and sale from time to time by the Company, pursuant to
Rule 415 of the General Rules and Regulations promulgated under the Act, of the
following securities of the Company: (i) senior or subordinated debt securities,
which may be secured or unsecured, in one or more series (the "Debt
Securities"), to be issued under the Indenture (the "Indenture") proposed to be
entered into between the Company and Law Debenture Trust Company of New York, as
trustee (the "Trustee"); (ii) shares of preferred stock, $0.01 par value per
share, of the Company (the "Preferred Stock"), in one or more series; (iii)
shares of common stock, $0.01 par value per share, of the Company ("Common
Stock"); and (iv) such indeterminate amount of Debt Securities and number of
shares of Common Stock or Preferred Stock as may be issued upon conversion,
exchange or exercise of any Debt Securities or Preferred Stock, including such
shares of Common Stock or Preferred Stock as may be issued pursuant to
anti-dilution adjustments, in amounts, at prices and on terms to be determined
at the time of offering. The Debt Securities, the Preferred Stock and the Common
Stock are collectively referred to herein as the "Offered Securities."
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of:
(i) the Registration Statement relating to the Offered Securities;
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December 21, 2005
Page 2
(ii) the Amended and Restated Certificate of Incorporation of the
Company, as amended to the date hereof and as certified by the
Secretary of State of the State of Delaware (the "Certificate of
Incorporation");
(iii) the Amended and Restated Bylaws of the Company, as currently in
effect and as certified by the Secretary of the Company (the
"Bylaws");
(iv) the form of the Indenture, filed as an exhibit to the Registration
Statement;
(v) [drafts of certain resolutions (the "Resolutions") to be adopted on
by the Board of Directors of the Company (the "Board of Directors")
relating to the registration of the Offered Securities and related
matters;] and
(vi) a specimen certificate evidencing the Common Stock.
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of the Company and such
agreements, certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents as we have
deemed necessary or appropriate as a basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as facsimile, electronic, certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to the opinions expressed herein that we did not independently
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Company and others and of public
officials. In making our examination of executed documents or documents to be
executed, we have assumed that the parties thereto, other than the Company, had
or will have the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and the execution and delivery by such
parties of such documents, and, as to parties other than the Company, the
validity and binding effect thereof on such parties. We have assumed that the
Indenture will be duly authorized, executed and delivered by the parties thereto
in substantially the form reviewed by us, and that any Debt Securities that may
be issued will be issued in a form that complies with the Indenture and will be
manually signed or countersigned, as the case may be, by duly authorized
officers of the Trustee. In addition, we have also assumed that the terms of the
Offered Securities will have been established so as not to, and that the
execution and delivery by the Company of, and the performance of its obligations
under, the Indenture and the Offered Securities, will not, violate, conflict
with or constitute a default under (i) any agreement or instrument to which the
Company is
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December 21, 2005
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subject, (ii) any law, rule or regulation to which the Company is subject, (iii)
any judicial or regulatory order or decree of any governmental authority or (iv)
any consent, approval, license, authorization or validation of, or filing,
recording or registration with any governmental authority. We have also assumed
that (i) the stock certificates evidencing the Offered Preferred Stock (as
defined below) to be issued will be in a form that complies with, and the terms
of such Preferred Stock will be duly established in accordance with, the
Delaware General Corporation Law (the "DGCL"), and (ii) the stock certificate
evidencing any Offered Common Stock (as defined below) issued will conform to
the specimen certificate examined by us and will be duly executed and delivered.
Our opinions set forth below are limited to the DGCL and those laws of the
State of New York that, in our experience, are normally applicable to
transactions of the type contemplated by the Registration Statement and to the
extent that judicial or regulatory orders or decrees or consents, approvals,
licenses, authorizations, validations, filings, recordings or registrations with
governmental authorities are relevant, to those required under such laws (all of
the foregoing being referred to as "Opined on Law"). We do not express any
opinion with respect to the law of any jurisdiction other than Opined on Law or
as to the effect of any such non-Opined on Law on the opinions herein stated.
The Offered Securities may be issued from time to time on a delayed or
continuous basis, and this opinion is limited to the laws, including the rules
and regulations, as in effect on the date hereof, which laws are subject to
change with possible retroactive effect.
Based upon and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective
under the Act and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended; [(ii) the Resolutions have been adopted
by the Board of Directors,] (iii) an appropriate prospectus supplement or
term sheet with respect to the Offered Debt Securities has been prepared,
delivered and filed in compliance with the Act and the applicable rules
and regulations thereunder; (iv) if the Offered Debt Securities are to be
sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the Offered Debt Securities has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (v) the Board of Directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the
Offered Debt Securities and related matters; (vi) the Indenture and a
supplemental indenture in respect of such Debt Securities has been duly
executed and delivered by each party thereto; (vii) the terms of the
Offered Debt Securities and of their issuance and sale have been duly
established in conformity with the Indenture and any supplemental
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December 21, 2005
Page 4
indenture to be entered into in connection with the issuance of such Debt
Securities so as not to violate any applicable law, the Certificate of
Incorporation or the Bylaws or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; and (viii) the Offered Debt
Securities have been issued in a form that complies with the Indenture and
have been duly executed and authenticated in accordance with the
provisions of the Indenture and any supplemental indenture to be entered
into in connection with the issuance of such Debt Securities and duly
delivered to the purchasers thereof upon payment of the agreed-upon
consideration therefor, the Offered Debt Securities (including any Debt
Securities duly issued upon conversion, exchange or exercise of any Debt
Securities or Preferred Stock), when issued and sold in accordance with
the Indenture, any supplemental indenture to be entered into in connection
with the issuance of such Debt Securities and the applicable underwriting
agreement, if any, or any other duly authorized, executed and delivered
valid and binding purchase or agency agreement, will be valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity), (c) public policy considerations which may limit the rights
of parties to obtain remedies, (d) the waivers of any usury defense
contained in the Indenture or Offered Debt Securities that may be
unenforceable, (e) requirements that a claim with respect to any Offered
Debt Securities denominated in a currency, currency unit or composite
currency other than United States dollars (or a judgment denominated other
than in United States dollars in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and (f) governmental authority to
limit, delay or prohibit the making of payments outside the United States
or in foreign currencies, currency units or composite currencies.
2. With respect to the shares of any series of Preferred Stock (the "Offered
Preferred Stock"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective
under the Act; [(ii) the Resolutions have been adopted by the Board of
Directors,] (iii) an appropriate prospectus supplement or term sheet with
respect to the shares of the Offered Preferred Stock has been prepared,
delivered and filed in compliance with the Act and the applicable rules
and regulations thereunder; (iv) if the Offered Preferred Stock is to be
sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the shares of the Offered Preferred Stock has
been duly authorized, executed and delivered by the Company and the other
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December 21, 2005
Page 5
parties thereto; (v) the Board of Directors, including any appropriate
committee appointed thereby, and appropriate officers of the Company have
taken all necessary corporate action to approve the issuance and terms of
the shares of the Offered Preferred Stock, the consideration to be
received therefor and related matters, including the adoption of a
Certificate of Designations to the Certificate of Incorporation for the
Offered Preferred Stock (the "Certificate of Designation") in accordance
with the applicable provisions of the DGCL; (vi) the filing of the
Certificate of Designation with the Secretary of State of the State of
Delaware has duly occurred; (vii) the terms of the Offered Preferred Stock
and of their issuance and sale have been duly established in conformity
with the Certificate of Incorporation, including the Certificate of
Designation relating to the Offered Preferred Stock, and the Bylaws of the
Company so as not to violate any applicable law, the Certificate of
Incorporation or the Bylaws or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; and (viii) certificates in the form
required under the DGCL representing the shares of the Offered Preferred
Stock are duly executed, countersigned, registered and delivered upon
payment of the agreed-upon consideration therefor, the shares of the
Offered Preferred Stock (including any Preferred Stock duly issued upon
conversion, exchange or exercise of any Debt Securities or Preferred
Stock), when issued or sold in accordance with the applicable underwriting
agreement or any other duly authorized, executed and delivered valid and
binding purchase or agency agreement, will be duly authorized, validly
issued, fully paid and nonassessable, provided that the consideration
therefor is not less than $0.01 per share of Preferred Stock.
3. With respect to any offering of Common Stock by the Company (the "Offered
Common Stock"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective
under the Act; [(ii) the Resolutions have been adopted by the Board of
Directors,] (iii) an appropriate prospectus supplement or term sheet with
respect to the Offered Common Stock has been prepared, delivered and filed
in compliance with the Act and the applicable rules and regulations
thereunder; (iv) if the Offered Common Stock is to be sold pursuant to a
firm commitment underwritten offering, the underwriting agreement with
respect to the Offered Common Stock has been duly authorized, executed and
delivered by the Company and the other parties thereto; (v) the Board of
Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate
action to approve the issuance of the Offered Common Stock, the
consideration to be received therefor and related matters; (vi) the terms
of the issuance and sale of the Offered Common Stock have been duly
established in conformity with the Certificate of Incorporation and the
Bylaws so as not to
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December 21, 2005
Page 6
violate any applicable law, the Certificate of Incorporation or the Bylaws
or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company; and (vii) certificates in the form required under the
DGCL representing the shares of Offered Common Stock are duly executed,
countersigned, registered and delivered upon payment of the agreed upon
consideration therefor, the shares of Offered Common Stock (including any
Common Stock duly issued upon conversion, exchange or exercise of any Debt
Securities or Preferred Stock), when issued and sold in accordance with
the applicable underwriting agreement with respect to the Offered Common
Stock or any other duly authorized, executed and delivered valid and
binding purchase or agency agreement, will be duly authorized, validly
issued, fully paid and nonassessable, provided that the consideration
therefor is not less than $0.01 per share of Common Stock.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also hereby consent to the use of our
name under the heading "Legal Matters" in the prospectus which forms a part of
the Registration Statement. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission promulgated
thereunder. This opinion is expressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable laws.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP