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[Letterhead of Gibson, Dunn & Crutcher LLP]
December 21, 2000
C 66241-00038
NRG Energy, Inc.
901 Marquette Avenue, Suite 2300
Minneapolis, Minnesota 55402
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
As counsel for NRG Energy, Inc., a Delaware corporation (the
"Company"), we are familiar with the Company's registration statement on Form
S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), on the date hereof, with respect to the offering and issuance from time
to time by the Company of up to $1,650,000,000 aggregate offering price of the
following: (i) one or more series of the Company's senior debt securities (the
"Debt Securities"), (ii) shares of the Company's preferred stock, par value
$0.01 per share (the "Preferred Stock"), (iii) shares of the Company's common
stock, par value $0.01 per share (the "Common Stock"), (iv) warrants to purchase
Debt Securities, Preferred Stock or Common Stock (the "Warrants"), (v)
depositary shares of the Company representing a fractional interest in a share
of Preferred Stock ("Depositary Shares") or (vi) stock purchase contracts and
stock purchase units of the Company ("Stock Purchase Contracts"). The Debt
Securities, Preferred Stock, Common Stock, Warrants, Depositary Shares and Stock
Purchase Contracts are herein collectively referred to as the "Securities." All
capitalized terms which are not defined herein shall have the meanings assigned
to them in the Registration Statement.
We have examined the originals or certified copies of such corporate
records, certificates of officers of the Company and public officials and such
other documents, and have made such other factual and legal investigations, as
we have deemed relevant and necessary as the basis for the opinions
Exhibit 5.1
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NRG Energy, Inc.
December 21, 2000
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set forth below. In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as conformed or photostatic copies.
Based on the foregoing and in reliance thereon, and subject to
completion of the corporate action required to be taken by the Company based on
the type of Security being issued (including, without limitation, the due
reservation of any Common Shares and Preferred Shares for issuance and, with
respect to any Preferred Shares and any Depositary Shares, the due
authorization, approval and filing of a Certificate of Designations referred to
below), the effectiveness of the Registration Statement, the due execution and
delivery of the relevant Indenture or Supplemental Indenture pursuant to which
any Debt Securities may be issued (the "Indenture"), and, with respect to the
Indenture, compliance with the Trust Indenture Act of 1939, as amended (the
"TIA"), execution and delivery of a Warrant Agreement relating to any Warrants
(the "Warrant Agreement"), and the execution of one or more Deposit Agreements
relating to any Depositary Shares (the "Deposit Agreement"), and the
qualifications and limitations set forth below, we are of the opinion that:
(1) the Debt Securities and Warrants, upon the issuance
thereof and timely payment in full therefor in the manner described in the
Registration Statement and the Prospectus Supplement describing the terms of the
Debt Securities and Warrants as issued, will be validly issued, fully paid and
nonassessable;
(2) the Debt Securities so issued will be legally binding
obligations of the Company, entitled to the benefits provided under the
Indenture pursuant to which they are issued, subject to the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement, or similar laws
affecting the enforcement of creditors' rights generally (including, without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or preferential transfers) and general principles of equity, regardless of
whether enforceability is considered in a proceeding in equity or at law (the
"Enforceability Exceptions");
(3) any Warrants so issued will be legally binding obligations
of the Company, entitled to the benefits provided under the applicable Warrant
Agreement approved by the Board of Directors of the Company, subject to the
Enforceability Exceptions;
(4) the Preferred Shares and Common Shares issued separately
or upon the conversion of any Debt Securities so issued that are convertible and
upon the exercise of any Warrants so issued (as to the Preferred Shares, when
issued pursuant to a Certificate of Designations pursuant to Section 151 of the
Delaware General Corporation Law as approved by the Board of Directors of the
Company (the "Certificate of Designations")), and the Common Shares issued upon
conversion or exchange of any such Preferred Shares so issued that are
convertible or exchangeable into Common
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NRG Energy, Inc.
December 21, 2000
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Shares (i) will have been duly authorized and reserved for issuance separately,
upon conversion of such Debt Securities, exercise of any such Warrants or
conversion or exchange of any such convertible Preferred Shares, upon the
respective issuance of each, as the case may be, and (ii) upon the issuance of
such Preferred Shares and Common Shares separately against payment in full
therefor in an amount exceeding the par value, if any, thereof or pursuant to
(x) the Indenture upon valid conversion of such Debt Securities, (y) exercise of
such Warrants and payment in full of the exercise price provided for therein or
(z) valid conversion of any such Preferred Shares so issued that are convertible
into Common Shares in accordance with the Certificate of Designations, as the
case may be, will be validly issued, fully paid and nonassessable;
(5) the Depositary Shares, when the Deposit Agreement has been
duly authorized and validly executed and delivered by the Company and when
issued pursuant to a Certificate of Designations and upon payment in full
therefor in an amount exceeding the par value, if any, thereof will be duly
authorized, validly issued, fully paid and nonassessable; and
(6) the Stock Purchase Contracts, when duly executed and
delivered, will be enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions.
The opinions set forth herein are subject to the following assumptions,
qualifications, limitations and exceptions being true and correct at or prior to
the time of the delivery of any Security:
(a) the Board of Directors of the Company shall have duly established
the terms of such Security and duly authorized and taken any other necessary
corporate action to approve the issuance and sale of such Security in conformity
with the Certificate of Incorporation of the Company, as amended, and its
bylaws, as amended, through such time (subject to the further assumption that
the Certificate of Incorporation and bylaws have not been amended from the date
hereof in a manner that would affect the validity of any of the opinions
rendered herein), and such authorization shall remain in effect and unchanged at
all times during which the Securities are offered and shall not have been
modified or rescinded (subject to the further assumption that the sale of any
Security takes place in accordance with such authorization);
(b) the Registration Statement, and any amendments thereto (including
post-effective amendments) and any additional registration statement filed under
Rule 462 will have been declared effective under the Act and such effectiveness
shall not have been terminated or rescinded;
(c) a prospectus supplement (a "Prospectus Supplement") will have been
prepared and filed with the Commission describing the Securities offered
thereby;
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NRG Energy, Inc.
December 21, 2000
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(d) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and solely in the manner stated in
the Registration Statement and the appropriate Prospectus Supplement and there
will not have occurred any change in law affecting the validity of any of the
opinions rendered herein;
(e) with respect to Debt Securities, the applicable trustee shall have
been qualified under the TIA and a Form T-1 shall have been properly filed as an
exhibit to the Registration Statement; and
(f) in the case of an Indenture, Warrant Agreement, Stock Purchase
Contract, Certificate of Designation, Deposit Agreement or other agreement
pursuant to which any Securities are to be issued, there shall be no terms or
provisions contained therein which would affect the validity of any of the
opinions rendered herein.
This opinion is limited to the present corporate laws of the State of
Delaware, the present laws of the State of New York and the present federal laws
of the United States and to the present judicial interpretations thereof and to
the facts as they presently exist. We express no opinion as to matters involving
the laws of any jurisdiction other than the States of New York and Delaware and
the United States. We are not admitted to practice law in the State of Delaware,
but we are generally familiar with the Delaware General Corporation Law as
presently in effect and have made such inquiries as we considered necessary to
render our opinion. We undertake no obligation to advise you as a result of
developments occurring after the date hereof or as a result of facts or
circumstances brought to our attention after the date hereof.
This opinion may not be quoted in whole or in part without the prior
written consent of this Firm.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm under the caption "Legal
Matters" in the prospectus contained in the Registration Statement. In giving
this consent, we do not admit we are included in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
RMR/SMB/SMD
