EXHIBIT 1(A)
[Name of Issuer]
[Name of Security]
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UNDERWRITING AGREEMENT
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[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. [/1/FPL Group, Inc., a Florida corporation ("FPL
Group"), proposes to issue and sell shares of FPL Group's common stock, $.01 par
value (the "Common Stock"), and the preferred share purchase rights attached
thereto (the "Rights") (collectively referred to as "Shares") in the amount of
________ Shares (referred to as the "Securities").] [/2/FPL Group Capital Inc, a
Florida corporation ("FPL Group Capital") and a [wholly-owned] subsidiary of FPL
Group, Inc., a Florida corporation ("FPL Group"), proposes to issue and sell its
debt securities of the series designation[s], with the terms and in the
principal amount[s] specified in Schedule I hereto (the "Debentures" or
"Securities"). The Debentures will be absolutely, irrevocably and
unconditionally guaranteed by FPL Group pursuant to and in accordance with the
terms of the Guarantee Agreement (as hereinafter defined).] [/3/FPL Group, Inc.,
a Florida corporation ("FPL Group"), proposes to issue and sell FPL Group's new
securities ("Securities"), and in connection therewith FPL Group Capital Inc, a
Florida corporation ("FPL Group Capital") and a [wholly-owned] subsidiary of FPL
Group, proposes to issue and sell certain of its debt securities as specified
herein. The Securities will consist of _______ equity units consisting of ______
of FPL Group's corporate units ("Corporate Units"), with a stated amount per
Corporate Unit of $__ (the "Stated Amount").] [/1/FPL Group hereby confirms its
agreement with the several Underwriters (as defined below) as set forth herein.]
[/2/,/3/Each of FPL Group and
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1 For use in connection with Common Stock.
2 For use in connection with Debt Securities.
3 For use in connection with Stock Purchase Units. FPL Group may substitute
preferred trust securities for debentures in connection with the Stock
Purchase Units. In that event, please refer to the Form of Underwriting
Agreement for Preferred Trust Securities.
FPL Group Capital hereby confirms its agreement with the several Underwriters
(as defined below) as set forth herein.]
The term "Underwriters" as used herein shall be deemed to mean the entity
or several entities named in Schedule II hereto and any underwriter substituted
as provided in Section 6 hereof and the term "Underwriter" shall be deemed to
mean one of such Underwriters. If the entity or entities listed in Schedule I
hereto (the "Representatives") are the same as the entity or entities listed in
Schedule II hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such entity or entities. The
Representatives represent that they have been authorized by each Underwriter to
enter into this agreement on behalf of such Underwriter and to act for it in the
manner herein provided. All obligations of the Underwriters hereunder are
several and not joint. If more than one entity is named in Schedule I hereto,
any action under or in respect of this agreement may be taken by such entities
jointly as the Representatives or by one of the entities acting on behalf of the
Representatives and such action will be binding upon all the Underwriters.
2. Description of Securities. [/1/Pursuant to, and subject to the
provisions of, the Rights Agreement, dated as of July 1, 1996, between FPL Group
and Computershare Investor Services, LLC, as successor to EquiServe Trust
Company, N.A., as Rights Agent ("Rights Agreement"), and the Restated Articles
of Incorporation of FPL Group, as amended, one Right will be issued with each
newly-issued share of Common Stock.] [/2/The Debentures [of each series] will be
a series of debentures issued by FPL Group Capital under an Indenture, dated as
of June 1, 1999, to The Bank of New York, as Trustee, a copy of which has been
heretofore delivered to the Representatives (together with any amendments or
supplements thereto, the "Indenture"). The Debentures will be absolutely,
irrevocably and unconditionally guaranteed by FPL Group pursuant to, and in
accordance with, the terms of a Guarantee Agreement, dated as of June 1, 1999,
between FPL Group, as Guarantor, and The Bank of New York, as Guarantee Trustee,
a copy of which has been heretofore delivered to the Representatives (the
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"Guarantee Agreement"). The term "Guarantee" as used in this agreement shall
refer to the guarantee pursuant to the Guarantee Agreement relating to the
Debentures (as defined below).] [/3/Each Corporate Unit will consist of a unit
comprised of (a) a stock purchase contract (a "Purchase Contract") under which
(i) the holder will purchase from FPL Group not later than __________, ____ (the
"Purchase Contract Settlement Date"), for $__ in cash, a fraction of a newly
issued share of FPL Group's common stock, $.01 par value (the "Common Stock"),
including the preferred share purchase rights, if any, attached thereto (the
"Rights") (collectively referred to as the "Shares") determined as provided in
the Purchase Contract, and (ii) FPL Group will pay the holder unsecured contract
adjustments payments ("Contract Adjustment Payments") at the rate of ____% of
the Stated Amount per annum, subject to the right of FPL Group to defer such
payments, and (b) prior to the Purchase Contract Settlement Date, beneficial
ownership of a Series __ Debenture due __________, ____ issued by FPL Group
Capital (a "Debenture"), having a principal amount of $__. The Debentures will
be a series of debentures issued by FPL Group Capital under an Indenture, dated
as of June 1, 1999, to The Bank of New York, as Trustee (together with any
amendments and supplements thereto, the "Indenture"), a copy of which has been
heretofore delivered to the Representatives, and will be absolutely, irrevocably
and unconditionally guaranteed by FPL Group pursuant to, and in accordance with,
the terms of a Guarantee Agreement, dated as of June 1, 1999, between FPL Group,
as Guarantor, and The Bank of New York, as Guarantee Trustee, a copy of which
has been heretofore delivered to the Representatives (the "Guarantee
Agreement"). The term "Guarantee" as used in this agreement shall refer to the
guarantee pursuant to the Guarantee Agreement relating to the Debentures. In
accordance with the terms of the Purchase Contract Agreement, dated as of
__________, ____ (the "Purchase Contract Agreement"), between FPL Group and The
Bank of New York, as Purchase Contract Agent and Trustee (the "Purchase Contract
Agent"), the Debentures constituting a part of the Corporate Units will be
pledged by the Purchase Contract Agent, on behalf of the holders of the
Securities (as defined herein), to __________, as Collateral Agent, pursuant to
the Pledge Agreement, dated as of __________, ____ (the "Pledge Agreement"),
among FPL Group, the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent and the Securities Intermediary, to secure the holders'
obligations to purchase Shares pursuant to the Purchase Contracts. Under certain
circumstances, holders of Corporate Units may substitute certain U.S. Treasury
securities for the Debentures that are a part of such holders' Corporate Units
and thereby create treasury units ("Treasury Units") pursuant to the terms of
the Purchase Contract Agreement and the Pledge Agreement. Also, under certain
circumstances, the Debentures will be subject to remarketing pursuant to a
Remarketing Agreement, dated as of __________, ____ among __________, as
Remarketing Agent and as Reset Agent, FPL Group, FPL Group Capital and the
Purchase Contract Agent (the "Remarketing Agreement").]
3. [/2/,/3/Representations and Warranties of FPL Group Capital. FPL Group
Capital represents and warrants to the several Underwriters that:
(a) [FPL Group Capital has, together with FPL Group, FPL Group Capital
Trust I and FPL Group Capital Trust II, filed with the Securities and
Exchange Commission (the "Commission") a joint registration statement, as
amended, on Form S-3, including a prospectus ("Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇"), for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of (a) $2,674,900,000 aggregate amount of (i) FPL Group Capital's
unsecured debt securities ("Debt Securities"), (ii) [/2/shares of] FPL
Group's [/2/common stock, $.01 par value (the "Common Stock"), and the
preferred share purchase rights attached thereto (the "Rights")
(collectively referred to as the "Shares")] [/3/Shares], (iii) contracts to
purchase Shares or other agreements or instruments requiring FPL Group to
issue Shares (collectively, "Stock Purchase Contracts"), (iv) units, each
representing ownership of a Stock Purchase Contract and any of Debt
Securities, Preferred Trust Securities (as defined below) or debt
securities of third parties, including U.S. Treasury securities ("Stock
Purchase Units"), (v) [/1/FPL Group Capital's junior subordinated
debentures ("Junior Subordinated Debentures")] [/2/,/3/Junior Subordinated
Debentures], and (vi) one or more series of preferred trust securities of
FPL Group Capital Trust I and FPL Group Capital Trust II ("Preferred Trust
Securities") (provided however, that the aggregate value of all such
securities or combinations of such securities listed in (i) through (vi)
offered for sale to the public by FPL Group, FPL Group Capital, FPL Group
Capital Trust I and FPL Group Capital Trust II included in the registration
statement may not exceed $1,337,450,000) and (b) FPL Group's guarantees
related to the Debt Securities (the "Guarantee"), FPL Group Capital Junior
Subordinated Debentures and one or more series of the preferred trust
securities of FPL Group Capital Trust I and FPL Group Capital Trust II.
Such registration statement has been declared effective by the Commission
and no stop order suspending such effectiveness has been issued under the
Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of FPL Group Capital, threatened by the
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Commission. All but $[__________] aggregate amount of securities registered
with the Commission under the Securities Act pursuant to Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇
have been previously issued.] FPL Group Capital has [also] filed with the
Commission a joint registration statement with FPL Group, FPL Group Capital
Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL Group
Trust II on Form S-3, including a combined prospectus ("Registration
Statement Nos. 333-_______, 333-______-01, 333-_______-02, 333-_______-03,
333-_______-04 and 333-_______-05"), for registration under the Securities
Act of (a) $2,800,000,000 aggregate amount of (i) FPL Group Capital's Debt
Securities, (ii) FPL Group's Shares, (iii) shares of one or more series of
FPL Group's serial preferred stock, $.01 par value ("FPL Group Preferred
Stock"), (iv) shares of one or more series of FPL Group Capital's preferred
stock, $[__] par value ("FPL Group Capital's Preferred Stock"), (v) Stock
Purchase Contracts, (vi) Stock Purchase Units, (vii) FPL Group Capital's
junior subordinated debentures ("FPL Group Capital Junior Subordinated
Debentures"), (viii) FPL Group's junior subordinated debentures ("FPL Group
Junior Subordinated Debentures"), and (ix) preferred trust securities of
FPL Group Capital Trust II, FPL Group Capital Trust III, FPL Group Trust I
and FPL Group Trust II ("Preferred Trust Securities") (provided, however,
that the aggregate amount of all such securities or combinations of such
securities listed in (i) through (ix) offered for sale to the public by FPL
Group, FPL Group Capital, FPL Group Capital Trust II, FPL Group Capital
Trust III, FPL Group Trust I and FPL Group Trust II included in the
registration statement may not exceed $1,400,000,000) and (b) the Guarantee
and FPL Group's guarantees related to the Debt Securities, FPL Group
Capital Junior Subordinated Debentures, FPL Group Capital Preferred Stock
and Preferred Trust Securities. [None] [$__________] of the $1,400,000,000
aggregate amount of securities registered with the Commission under the
Securities Act pursuant to Registration Statement Nos. 333-_______ ,
333-______-01, 333-_______-02, 333-_______-03, 333-_______-04 and
333-_______-05 [has] [have] been previously issued. Such registration
statement has been declared effective by the Commission and no stop order
suspending such effectiveness has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of FPL Group Capital, threatened by the Commission.
References herein to the term "Registration Statement" as of any given date
shall mean Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ and Registration Statement Nos.
333-_______, 333-______-01, 333-_______-02, 333-_______-03, 333-_______-04
and 333-_______-05, each as amended or supplemented to such date, including
all documents incorporated by reference therein as of such date pursuant to
Item 12 of Form S-3 ("Incorporated Documents"); provided that if FPL Group
Capital files a joint registration statement with FPL Group, FPL Group
Capital Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL
Group Trust II with the Commission pursuant to Rule 462(b) under the
Securities Act (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall be deemed to
include the Rule 462(b) Registration Statement. References herein to the
term "Prospectus" as of any given date shall mean the [combined] prospectus
forming a part of Registration Statement Nos. 333-_______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05, as
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supplemented by a prospectus supplement relating to the Offered Securities
proposed to be filed pursuant to Rule 424 of the general rules and
regulations of the Securities Act ("Rule 424"), and as further amended or
supplemented as of such date (other than amendments or supplements relating
to (i) securities other than the Offered Securities or (ii) when referring
to the Prospectus relating to a particular offering of the Offered
Securities, Offered Securities other than the Offered Securities being
offered on such date), including all Incorporated Documents. References
herein to the term "Effective Date" shall be deemed to refer to the later
of the time and date that Registration Statement Nos. 333-_______,
333-______-01, 333-_______-02, 333-_______-03, 333-_______-04 and
333-_______-05 was declared effective and the time and date of the filing
thereafter of FPL Group's most recent Annual Report on Form 10-K, if such
filing is made prior to the Closing Date (as hereinafter defined). The
prospectus supplement relating to the Offered Securities proposed to be
filed pursuant to Rule 424 shall be substantially in the form delivered to
the Representatives prior to the execution of this agreement. Prior to the
termination of the offering of the Offered Securities, FPL Group Capital
will not file any amendment to the Registration Statement or any amendment
or supplement to the Prospectus without prior notice to the Representatives
and to Hunton & ▇▇▇▇▇▇▇▇ LLP, who are acting as counsel for the several
Underwriters ("Counsel for the Underwriters"), or any such amendment or
supplement to which the Representatives shall reasonably object in writing,
or which shall be unsatisfactory to Counsel for the Underwriters. Each of
the Underwriters acknowledges that subsequent to the Closing Date, FPL
Group Capital may file a post-effective amendment to the Registration
Statement in order to file one or more unqualified opinions of counsel
pursuant to Rule 462(d) under the Securities Act.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the date it is filed with the Commission
pursuant to Rule 424 (such date, the "424 Date") and at the Closing Date,
and the Registration Statement and the Indenture at the Closing Date, will
fully comply, in all material respects with the applicable provisions of
the Securities Act and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), respectively, and, in each case, the applicable instructions,
rules and regulations of the Commission thereunder; the Registration
Statement, at the Effective Date, did not, and at the Closing Date, the
Registration Statement will not, contain an untrue statement of a material
fact, or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus, on
the 424 Date and at the Closing Date, will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading; provided, that the foregoing
representations and warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to FPL Group or FPL Group Capital by or on
behalf of any Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or the
Prospectus, or to any statements in or omissions from the [/1/Statements of
Eligibility on Form T-1, or amendments thereto, filed as exhibits to the
Registration Statement or incorporated into the Registration Statement
(collectively, the "Statements of Eligibility")] [/2/,/3/Statements of
Eligibility] or to any statements or omissions made in the Registration
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Statement or Prospectus relating to The Depository Trust Company ("DTC")
Book-Entry-Only System that are based solely on information contained in
published reports of DTC.
(c) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group Capital, and the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled have been duly authorized by all necessary corporate action of
FPL Group Capital in accordance with the provisions of its Articles of
Incorporation (the "FPL Group Capital Charter"), by-laws and applicable
law, and the Debentures when issued and delivered as provided herein will
constitute valid and binding obligations of FPL Group Capital enforceable
against it in accordance with their terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity. The execution and delivery of the Debentures and the
performance by FPL Group Capital of its obligations thereunder do not
require any consent, approval, authorization, registration or qualification
of or by any governmental agency or body other than those consents,
approvals, authorizations, registrations or qualifications as have already
been obtained.
(d) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group Capital, the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled, and the compliance by FPL Group Capital with all the terms and
provisions of the Indenture will not result in a breach of any of the terms
or provisions of, or constitute a default under, the FPL Group Capital
Charter or by-laws, or any indenture, mortgage, deed of trust or other
agreement or instrument to which FPL Group Capital is now a party, or
violate any law or any order, rule, decree or regulation applicable to FPL
Group Capital of any federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL Group Capital or any of
its property, except where such breach, default or violation would not have
a material adverse effect on the business, properties or financial
condition of FPL Group Capital and its subsidiaries taken as a whole.
(e) FPL Group Capital or one or more of its direct or indirect
subsidiaries has good and marketable title to all of the ownership
interests of FPL Energy, LLC and ESI Energy, LLC free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof.
(f) FPL Group Capital and each of its direct and indirect significant
subsidiaries (as defined in Regulation S-X (17 CFR Part 210)) has been duly
organized, is validly existing and is in good standing under the laws of
its respective jurisdiction of organization, and is duly qualified to do
business and is in good standing as a foreign corporation or other entity
in each jurisdiction in which its respective ownership of properties or the
conduct of its respective businesses requires such qualification, except
where the failure so to qualify would not have a material adverse effect on
the business, properties or financial condition of FPL Group Capital and
its subsidiaries taken as a whole, and has the power and authority as a
corporation or other entity necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged.
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(g) The Debentures conform in all material respects to the description
thereof in the Prospectus.
(h) The Indenture (i) has been duly authorized by FPL Group Capital by
all necessary corporate action, has been duly executed and delivered by FPL
Group Capital, and is a valid and binding instrument enforceable against
FPL Group Capital in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies generally
and general principles of equity and (ii) conforms in all material respects
to the description thereof in the Prospectus.]
(i) FPL Group Capital is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended ("1940 Act").
4. Representations and Warranties of FPL Group. FPL Group represents and
warrants to the several Underwriters that:
(a) [FPL Group, jointly with FPL Group Capital [/1/Inc, a Florida
corporation ("FPL Group Capital") and a [wholly-owned] subsidiary of FPL
Group], has filed with the [/1/Securities and Exchange Commission (the
"Commission")] [/2/,/3/the Commission] Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ for the
registration under the Securities Act [/1/of 1933, as amended (the
"Securities Act"),] of $2,674,900,000 aggregate amount of (i) FPL Group
Capital's [/1/unsecured debt securities ("Debt Securities")] [/2/,/3/Debt
Securities], (ii) FPL Group's Shares, (iii) [/1/contracts to purchase the
Shares or other agreements or instruments requiring FPL Group to issue the
Shares (collectively, "Stock Purchase Contracts")] [/2/,/3/Stock Purchase
Contracts], (iv) [/1/units, each representing ownership of a Stock Purchase
Contract and any of Debt Securities, Preferred Trust Securities (as defined
below) or debt securities of third parties, including U.S. Treasury
securities ("Stock Purchase Units")] [/2/,/3/Stock Purchase Units], (v)
[/1/FPL Group Capital's junior subordinated debentures ("Junior
Subordinated Debentures")] [/2/,/3/Junior Subordinated Debentures], and
(vi) preferred trust securities of FPL Group Capital Trust I and FPL Group
Capital Trust II (provided however, that the aggregate value of all such
securities or combinations of such securities listed in (i) through (vi)
offered for sale to the public by FPL Group, FPL Group Capital, FPL Group
Capital Trust I and FPL Group Capital Trust II included in the registration
statement may not exceed $1,337,450,000) and (b) [/1/FPL Group's
guarantees related to the Debt Securities (the "Guarantee")] [/2/,/3/the
Guarantee], FPL Group Capital Junior Subordinated Debentures and one or
more series of the preferred trust securities of FPL Group Capital Trust I
and FPL Group Capital Trust II. Such registration statement has been
declared effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no proceedings
for that purpose have been instituted or are pending or, to the knowledge
of FPL Group, threatened by the Commission. All but $[__________] aggregate
amount of securities registered with the Commission under the Securities
Act pursuant to Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ have been previously issued.] FPL Group
[also] has, together with FPL Group Capital, FPL Group Capital Trust II,
FPL Group Capital III, FPL Group Trust I and FPL Group Trust II, filed with
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the Commission Registration Statement Nos. 333-_______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05, for
registration under the Securities Act of $2,800,000,000 aggregate amount of
(i) FPL Group Capital's Debt Securities, (ii) FPL Group's Shares, (iii) FPL
Group Preferred Stock, (iv) FPL Group Capital Preferred Stock, (v) Stock
Purchase Contracts, (vi) Stock Purchase Units, (vii) FPL Group Capital
Junior Subordinated Debentures, (viii) FPL Group Junior Subordinated
Debentures, and (ix) [/1/preferred trust securities of FPL Group Capital
Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL Group
Trust II ("Preferred Trust Securities")] [/2/,/3/Preferred Trust
Securities] (provided, however, that the aggregate amount of all such
securities or combinations of such securities listed in (i) through (ix)
offered for sale to the public by FPL Group, FPL Group Capital, FPL Group
Capital Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL
Group Trust II included in the registration statement may not exceed
$1,400,000,000) and (b) the Guarantee and FPL Group's guarantees related to
the Guarantee and FPL Group Capital Junior Subordinated Debentures, FPL
Group Capital Preferred Stock and Preferred Trust Securities. [None]
[$__________] of the $1,400,000,000 aggregate amount of securities
registered with the Commission under the Securities Act pursuant to
Registration Statement Nos. 333-_______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04 and 333-_______-05 [has] [have] been
previously issued. Such registration statement has been declared effective
by the Commission and no stop order suspending such effectiveness has been
issued under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of FPL Group,
threatened by the Commission. [/1/References herein to the term
"Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇
and Registration Statement Nos. 333-_______, 333-______-01, 333-______-02,
333-______-03, 333-_______-04 and 333-_______-05, each as amended or
supplemented to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3
("Incorporated Documents"); provided that if FPL Group files a joint
registration statement with FPL Group Capital, FPL Group Capital Trust II,
FPL Group Capital Trust III, FPL Group Trust I and FPL Group Trust II with
the Commission pursuant to Rule 462(b) under the Securities Act (the "Rule
462(b) Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement. References herein to the term "Prospectus" as of
any given date shall mean the combined prospectus forming a part of
Registration Statement Nos. 333-_______, 333-______-01, 333-______-02,
333-______-03, 333-_______-04 and 333-_______-05, as supplemented by a
prospectus supplement relating to the Offered Securities proposed to be
filed pursuant to Rule 424 of the general rules and regulations of the
Securities Act ("Rule 424"), and as further amended or supplemented as of
such date (other than amendments or supplements relating to (i) securities
other than the Offered Securities or (ii) when referring to the Prospectus
relating to a particular offering of the Offered Securities, Securities
other than the Offered Securities being offered on such date), including
all Incorporated Documents. References herein to the term "Effective Date"
shall be deemed to refer to the later of the time and date that
Registration Statement Nos. 333-_______, 333-______-01, 333-______-02,
333-______-03, 333-_______-04 and 333-_______-05 was declared effective and
8
the time and date of the filing thereafter of FPL Group's most recent
Annual Report on Form 10-K, if such filing is made prior to the Closing
Date (as hereinafter defined).] The prospectus supplement relating to the
Offered Securities proposed to be filed pursuant to Rule 424 shall be
substantially in the form delivered to the Representatives prior to the
execution of this agreement. Prior to the termination of the offering of
the Offered Securities, FPL Group will not file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
without prior notice to the Representatives and to [/1/Hunton & ▇▇▇▇▇▇▇▇
LLP, who are acting as counsel for the several Underwriters ("Counsel for
the Underwriters")] [/2/,/3/Counsel for the Underwriters], or any such
amendment or supplement to which the Representatives shall reasonably
object in writing, or which shall be unsatisfactory to Counsel for the
Underwriters. Each of the Underwriters acknowledges that subsequent to the
Closing Date, FPL Group may file a post-effective amendment to the
Registration Statement in order to file one or more unqualified opinions of
counsel pursuant to Rule 462(d) under the Securities Act.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the [/1/date it is filed with the Commission
pursuant to Rule 424 (such date, the "424 Date")] [/2/,/3/424 Date] and at
the Closing Date, and the Registration Statement [/2/and the Guarantee
Agreement] [/3/, the Guarantee Agreement and the Purchase Contract
Agreement] at the Closing Date, will fully comply, in all material respects
with the applicable provisions of the Securities Act [/2/,/3/and the 1939
Act, respectively] and [/2/,/3/, in each case,] the applicable
instructions, rules and regulations of the Commission thereunder; the
Registration Statement, at the Effective Date, did not, and at the Closing
Date, the Registration Statement will not, contain an untrue statement of a
material fact, or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus, on the 424 Date and at the Closing Date, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading; and the
Incorporated Documents, when filed with the Commission, fully complied or
will fully comply in all material respects with the applicable provisions
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the applicable instructions, rules and regulations of the Commission
thereunder; provided, that the foregoing representations and warranties in
this subsection (b) shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to
FPL Group [/2/,/3/or FPL Group Capital] by or on behalf of any Underwriter
through the Representatives expressly for use in connection with the
preparation of the Registration Statement or the Prospectus, or to any
statements in or omissions from the Statements of Eligibility on Form T-1,
or amendments thereto, filed as exhibits to the Registration Statement or
incorporated into the Registration Statement (collectively, the
"Statements of Eligibility") or to any statements or omissions made in the
Registration Statement or Prospectus relating to [/1/The Depository Trust
Company ("DTC")] [/2/,/3/the DTC] Book-Entry-Only System that are based
solely on information contained in published reports of DTC.
(c) The financial statements included as part of or incorporated by
reference in the Registration Statement present fairly the consolidated
financial condition and results of operations of FPL Group and its
9
subsidiaries taken as a whole, at the respective dates and for the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and Deloitte & Touche
LLP, who have audited the audited financial statements of FPL Group, are
independent public accountants as required by the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent dates as of
which information is given in the Registration Statement and Prospectus,
there has not been any material adverse change in the business, properties
or financial condition of FPL Group and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, nor has any transaction
been entered into by FPL Group or any of its subsidiaries that is material
to FPL Group and its subsidiaries taken as a whole, other than changes and
transactions contemplated by the Registration Statement and Prospectus, and
transactions in the ordinary course of business. FPL Group and its
subsidiaries have no contingent obligation material to FPL Group and its
subsidiaries taken as a whole, which is not disclosed in or contemplated by
the Registration Statement and Prospectus.
(e) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group, and the fulfillment
of the terms hereof on the part of FPL Group to be fulfilled have been duly
authorized by all necessary corporate action of FPL Group in accordance
with the provisions of its Restated Articles of Incorporation (the "FPL
Group Charter"), by-laws and applicable law[/2/,/3/, and the Guarantee when
issued and delivered by FPL Group as provided herein will constitute a
valid and binding obligation of FPL Group enforceable against FPL Group in
accordance with its terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles
of equity. The execution and delivery of the Guarantee Agreement did not
require, and the performance by FPL Group of its obligations thereunder
with respect to the Debentures does not require, any consent, approval,
authorization, registration or qualification of or by any governmental
agency or body other than those consents, approvals, authorizations,
registrations or qualifications as have already been obtained].
(f) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group [/1/and] [/2/,/3/,]
the fulfillment of the terms hereof [/2/,/3/and the compliance by FPL Group
with all the terms and provisions of the Guarantee Agreement] will not
result in a breach of any of the terms or provisions of, or constitute a
default under, the FPL Group Charter or by-laws, or any indenture,
mortgage, deed of trust or other agreement or instrument to which FPL Group
or any of its subsidiaries is now a party, or violate any law or any order,
rule, decree or regulation applicable to FPL Group or any of its
subsidiaries of any federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL Group or its
subsidiaries or any of their respective property, except where such breach,
default or violation would not have a material adverse effect on the
10
business, properties or financial condition of FPL Group and its
subsidiaries taken as a whole.
(g) FPL Group or one or more of its direct or indirect subsidiaries
has good and marketable title to all of the common stock (with respect to
those subsidiaries which are organized as corporations) or other ownership
interests (with respect to those subsidiaries which are organized as
limited liability companies) of FPL Group's direct or indirect significant
subsidiaries (as defined in Regulation S-X [/1/(17 CFR Part 210)]) free and
clear of all liens and encumbrances, except such as do not materially
affect the value thereof. FPL Group's direct and indirect significant
subsidiaries (as defined in Regulation S-X) are Florida Power & Light
Company, FPL Group Capital, FPL Energy, LLC and ESI Energy, LLC.
(h) FPL Group and each of FPL Group's direct and indirect significant
subsidiaries (as defined in Regulation S-X) has been duly organized, is
validly existing and is in good standing under the laws of its respective
jurisdiction of organization, and is duly qualified to do business and is
in good standing as a foreign corporation or other entity in each
jurisdiction in which its respective ownership of properties or the conduct
of its respective businesses requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
business, properties or financial condition of FPL Group and its
subsidiaries taken as a whole, and has the power and authority as a
corporation or other entity necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged.
(i) [/2/,/3/The Guarantee Agreement (i) has been duly authorized by
FPL Group by all necessary corporate action, has been duly executed and
delivered by FPL Group and is a valid and binding instrument enforceable
against FPL Group in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies generally
and general principles of equity and (ii) conforms in all material respects
to the description thereof in the Prospectus.]
(j) [/3/Each of the Purchase Contract Agreement, the Pledge Agreement
and the Purchase Contracts forming a part of the Securities, (i) has been
authorized by all necessary corporate action on the part of FPL Group and,
when duly executed and delivered as provided herein, will constitute a
valid and binding obligation of FPL Group enforceable in accordance with
their respective terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles
of equity and, with respect to the Pledge Agreement, subject to any
principles of public policy limiting the rights to enforce the
indemnification and exculpation provisions contained therein and (ii)
conforms in all material respects to the description thereof in the
Prospectus.]
(k) [/1/The Common Stock has been validly authorized and, when issued
and delivered by FPL Group against payment therefor in accordance with the
provisions of this agreement, will be fully paid and non-assessable]
[/3/The Common Stock issuable pursuant to the Purchase Contracts forming a
part of the Offered Securities has been validly authorized and reserved for
11
issuance and, when issued and delivered by FPL Group against payment
therefor in accordance with the provisions of the Purchase Contract
Agreement, the Purchase Contracts and the Pledge Agreement, will be fully
paid and non-assessable] [/1/,/3/and the related Rights, if any, when
issued in accordance with the Rights Agreement, dated as of July 1, 1996,
as amended, between FPL Group and Computershare Investor Services, LLC, as
successor to EquiServe Trust Company, N.A. ("Rights Agreement") will be
validly issued subject to the terms of the Rights Agreement.]
(l) FPL Group is not an "investment company" within the meaning of the
[/1/Investment Company Act of 1940,as amended ("]1940 Act[/1/")].
5. Purchase and Sale. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions in this agreement, FPL
Group [/2/,/3/and FPL Group Capital agree] [/1/agrees] to sell to the respective
Underwriters named in Schedule II hereto, severally and not jointly, and the
respective Underwriters agree, severally and not jointly, to purchase from FPL
Group [/2/,/3/and FPL Group Capital] the respective [/1/,/3/number]
[/2/principal amounts] of Securities set forth opposite their respective names
in Schedule II hereto at the purchase price[s] for those Securities set forth in
Schedule I hereto.
[/1/,/3/The Underwriters agree to make a bona fide public offering of the
Securities. The Underwriters have advised FPL Group that the Securities will be
offered to the public at $___ per [/1/share] [/3/Corporate Unit] and to certain
dealers selected by the Representatives at a price which represents a concession
not in excess of $____ per [/1/share] [/3/Corporate Unit] under the public
offering price.]
[/2/The Underwriters agree to make a bona fide public offering of the
Debentures and the Guarantee as set forth in the Prospectus, such public
offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.
The Underwriters have advised FPL Group Capital that the Debentures (including
the related Guarantee) will be offered to the public at the percentage of the
principal amount per Debenture of each series as set forth in Schedule I hereto
as the Public Offering Price and to certain dealers selected by the
Representative at a price which represents a concession not in excess of the
percentage of the principal amount per Debenture of each series as set forth in
Schedule I hereto as the Dealers' Concession.]
[/3/The Debentures constituting a part of the Corporate Units will be
pledged, together with other collateral, to the Collateral Agent to secure the
holders' obligations to purchase Shares under the Purchase Contracts. Such
pledge shall be effected by delivery to the Collateral Agent of the Debentures
to be pledged in certificated form endorsed in blank, at the Closing Date in
accordance with the Pledge Agreement.]
6. Time, Date and Place of Closing, Default of Underwriter. Delivery of
the Securities [of each series] and payment therefor by wire transfer in federal
funds [/3/, and against delivery to the Collateral Agent of the Debentures
constituting a part of the Corporate Units,] shall be made at the time, date and
place set forth in Schedule I hereto, or at such other time, date or place as
may be agreed upon in writing by [/1/,/3/FPL Group[,]] [/2/,/3/FPL Group
12
Capital] and the Representatives. The time and date of such delivery and payment
are herein called the "Closing Date."
The Securities shall be delivered to the Representatives for the respective
accounts of the Underwriters against payment by the several Underwriters through
the Representatives of the purchase price therefor. Delivery of the Securities
shall be made through the facilities of DTC unless the Representatives and
[/1/FPL Group] [/2/FPL Group Capital] [/3/FPL Group and FPL Group Capital] shall
otherwise agree. For the purpose of expediting the checking of the Securities
[/3/and the Debentures] by the Representatives on behalf of the Underwriters,
[/1/,/3/FPL Group] [/2/FPL Group Capital] agrees to make such Securities [/3/and
the Debentures] available to the Representatives for such purpose at the offices
of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not
later than 2:00 P.M., New York City time, on the business day preceding the
Closing Date, or at such other time, date or place as may be agreed upon by
[/1/,/3/FPL Group] [,] [/2/,/3/ FPL Group Capital] and the Representatives.
If any Underwriter shall fail to purchase and pay for the [/1/,/3/number]
[/2/principal amount] of the Securities [of each series] which such Underwriter
has agreed to purchase and pay for hereunder (otherwise than by reason of any
failure on the part of FPL Group [/2/,/3/or FPL Group Capital] to comply with
any of the provisions contained herein), the non-defaulting Underwriters shall
be obligated to purchase and pay for (in addition to the respective
[/1/,/3/number] [/2/principal amount] of the Securities [of each series] set
forth opposite their respective names in Schedule II hereto) the [/1/,/3/number]
[/2/principal amount] of the Securities [of each series] which such defaulting
Underwriter or Underwriters failed to purchase and pay for, up to a
[/1/,/3/number] [/2/principal amount] thereof equal to, in the case of each such
remaining Underwriter, ten percent (10%) of the aggregate [/1/,/3/number]
[/2/principal amount] of the Securities [of the series as to which there is a
default and which are] set forth opposite the name of such remaining Underwriter
in said Schedule II, and such remaining Underwriters shall have the right,
within 24 hours of receipt of such notice, either to (i) purchase and pay for
(in such proportion as may be agreed upon among them) the remaining
[/1/,/3/number] [/2/principal amount] of the Securities [of each series] which
the defaulting Underwriter or Underwriters agreed but failed to purchase, or
(ii) to substitute another Underwriter or Underwriters, satisfactory to
[/1/,/3/FPL Group] [/2/FPL Group Capital], to purchase and pay for, the
remaining [/1/,/3/number] [/2/principal amount] of the Securities [of each
series] which the defaulting Underwriter or Underwriters agreed but failed to
purchase. If any of the Securities would still remain unpurchased, then
[/1/,/3/FPL Group] [/2/FPL Group Capital] shall be entitled to a further period
of 24 hours within which to procure another party or other parties, members of
the National Association of Securities Dealers, Inc. (or, if not members of such
Association, who are not eligible for membership in said Association and who
agree (i) to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with said Association's Conduct Rules) and
satisfactory to the Representatives to purchase such Securities on the terms
herein set forth. In the event that, within the respective prescribed periods,
(i) the non-defaulting Underwriters notify [/1/,/3/FPL Group] [/2/FPL Group
Capital] that they have arranged for the purchase of such Securities or (ii)
[/1/,/3/FPL Group] [/2/FPL Group Capital] notifies the non-defaulting
Underwriters that it has arranged for the purchase of such Securities, the
non-defaulting Underwriters or [/1/,/3/FPL Group] [/2/FPL Group Capital] shall
have the right to postpone the Closing Date for a period of not more than three
full business days beyond the expiration of the respective prescribed periods in
13
order to effect whatever changes may thus be made necessary in the Registration
Statement, the Prospectus or in any other documents or arrangements. In the
event that neither the non-defaulting Underwriters nor [/1/,/3/FPL Group]
[/2/FPL Group Capital] has arranged for the purchase of such Securities by
another party or parties as above provided, then this agreement shall terminate
without any liability on the part of FPL Group [/2/,/3/or FPL Group Capital] or
any Underwriter (other than an Underwriter which shall have failed or refused,
otherwise than for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations hereunder, to
purchase and pay for the Securities which such Underwriter has agreed to
purchase as provided in Section [5] hereof), except as otherwise provided in
Section [10 and] subsections (c) and (e) of Section [7] hereof.
7. Covenants of FPL Group [/2/,/3/and FPL Group Capital]. FPL Group
[/2/,/3/and FPL Group Capital] [/1/agrees] [/2/,/3/agree] with the several
Underwriters that:
(a) FPL Group [/2/,/3/and FPL Group Capital] will promptly file the
Prospectus with the Commission pursuant to Rule 424 under the Securities
Act.
(b) [/1/,/3/FPL Group] [/2/FPL Group Capital] will deliver to the
Representatives and to Counsel for the Underwriters one signed copy of the
Registration Statement or, if a signed copy is not available, one conformed
copy of the Registration Statement certified by an officer of [/1/,/3/FPL
Group] [/2/FPL Group Capital] to be in the form as originally filed,
including all Incorporated Documents and exhibits, except those
incorporated by reference, which relate to the Securities, including a
signed or conformed copy of each consent and certificate included therein
or filed as an exhibit thereto. As soon as practicable after the date of
this agreement, [/1/,/3/FPL Group] [/2/FPL Group Capital] will deliver to
the Underwriters through the Representatives as many copies of the
Prospectus as the Representatives may reasonably request for the purposes
contemplated by the Securities Act.
(c) [/1/,/3/FPL Group] [/2/FPL Group Capital] will pay or cause to be
paid all expenses in connection with (i) the preparation and filing of the
Registration Statement and Prospectus, (ii) the issuance and delivery of
the Securities as provided in Section [6] hereof, and (iii) the printing
and delivery to the Representatives for the account of the Underwriters, in
reasonable quantities, of copies of the Registration Statement [/1/and] [,]
the Prospectus [/2/the Guarantee Agreement and the Indenture] [/3/, the
Indenture, and the Purchase Contract Agreement]. [/1/,/3/FPL Group] [/2/FPL
Group Capital] will pay or cause to be paid all taxes, if any (but not
including any transfer taxes), on the issuance of the Securities.
[/1/,/3/FPL Group] [/2/FPL Group Capital] shall not, however, be required
to pay any amount for any expenses of the Representatives or any of the
Underwriters, except that if this agreement shall be terminated in
accordance with the provisions of Sections [8], [9] [or] [11] hereof,
[/1/,/3/FPL Group] [/2/FPL Group Capital] will pay or cause to be paid the
fees and disbursements of Counsel for the Underwriters, whose fees and
disbursements the Underwriters agree to pay in any other event and
[/1/,/3/FPL Group] [/2/FPL Group Capital] shall reimburse the Underwriters
for out-of-pocket expenses reasonably incurred by them in connection with
the transactions contemplated by this agreement, not in excess, however, of
an aggregate of $5,000. [/2/,/3/Neither] FPL Group [/2/,/3/nor FPL Group
Capital] shall [/1/not] in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits.
14
(d) During a period of nine months after the date of this agreement,
if any event relating to or affecting FPL Group [/2/,/3/or FPL Group
Capital] shall occur which, in the opinion of FPL Group [/2/,/3/or FPL
Group Capital], should be set forth in a supplement to or an amendment of
the Prospectus in order to make the Prospectus not misleading in the light
of the circumstances when it is delivered to a purchaser, [/1/,/3/FPL
Group] [/2/FPL Group Capital] will forthwith at its expense prepare and
furnish to the Representatives a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus
which will supplement or amend the Prospectus so that as supplemented or
amended it will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that should such event
relate solely to activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and furnishing copies of
any such amendment or supplement. In case any Underwriter is required to
deliver a Prospectus after the expiration of nine months after the date of
this agreement, [/1/,/3/FPL Group] [/2/FPL Group Capital] upon the request
of the Representatives will furnish to the Representatives, at the expense
of such Underwriter, a reasonable quantity of a supplemented or amended
Prospectus or supplements or amendments to the Prospectus complying with
Section 10 of the Securities Act.
(e) [/1/,/3/FPL Group] [/2/FPL Group Capital] will furnish such proper
information as may be lawfully required and otherwise cooperate in
qualifying the Securities for offer and sale under the blue sky laws of
such jurisdictions as the Representatives may designate and will pay or
cause to be paid filing fees and expenses (including fees of counsel not to
exceed $5,000 and reasonable disbursements of counsel), provided that
[/2/,/3/neither] FPL Group [/2/,/3/nor FPL Group Capital] shall [/1/not] be
required to qualify as a foreign corporation or dealer in securities, or to
file any consents to service of process under the laws of any jurisdiction,
or to meet other requirements deemed by FPL Group [/2/,/3/or FPL Group
Capital] to be unduly burdensome.
(f) FPL Group will timely file such reports pursuant to the Exchange
Act as are necessary in order to make generally available to its security
holders (including holders of the Securities) as soon as practicable an
earnings statement (which need not be audited, unless required so to be
under Section 11(a) of the Securities Act) for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a)
of the Securities Act.
(g) FPL Group [/2/,/3/and FPL Group Capital] will advise the
Representatives promptly of the filing of the Prospectus pursuant to Rule
424 and of any amendment or supplement to the Prospectus or Registration
Statement or, prior to the termination of the offering of the Securities
hereunder, of official notice of the institution of proceedings for, or the
entry of, a stop order suspending the effectiveness of the Registration
Statement and, if such a stop order should be entered, use every
commercially reasonable effort to obtain the prompt removal thereof.
8. Conditions of Underwriters' Obligations to Purchase and Pay for the
Securities. The several obligations of the Underwriters to purchase and pay for
15
the Securities shall be subject to the performance by FPL Group [/2/,/3/and FPL
Group Capital] of [/1/its] [/2/,/3/their] obligations to be performed hereunder
on or prior to the Closing Date and to the following conditions:
(a) The [/2/,/3/respective] representations and warranties made by FPL
Group [/2/,/3/and FPL Group Capital] herein shall be true and correct in
all material respects as of the Closing Date as if made on and as of such
date and the Representatives shall have received, prior to payment for the
Securities, a certificate from [/2/,/3/each of] FPL Group [/2/,/3/and FPL
Group Capital] dated the Closing Date and signed by an officer of FPL Group
[/2/,/3/and FPL Group Capital, as the case may be,] to that effect.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall be
in effect on the Closing Date; no proceedings for either such purpose shall
be pending before, or threatened by, the Commission on such date; and the
Representatives shall have received, prior to payment for the Securities, a
certificate from [/2/,/3/each of] FPL Group [/2/,/3/and FPL Group Capital]
dated the Closing Date and signed by an officer of FPL Group [/2/,/3/and
FPL Group Capital, as the case may be,] to the effect that, to the best of
their knowledge, no such order is in effect and no proceedings for either
such purpose are pending before, or to the knowledge of FPL Group
[/2/,/3/and FPL Group Capital] threatened by, the Commission.
(c) On the Closing Date, the Representatives shall have received from
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL Group [/2/,/3/and FPL Group
Capital], ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, co-counsel to FPL Group [/2/,/3/and FPL
Group Capital], and Hunton & ▇▇▇▇▇▇▇▇ LLP, Counsel for the Underwriters,
opinions (with a copy for each of the Underwriters) in substantially the
form and substance prescribed in Schedules III, IV and V hereto (i) with
such changes therein as may be agreed upon by FPL Group [/2/,/3/, FPL Group
Capital] and the Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Securities shall
be supplemented or amended after the Prospectus shall have been filed with
the Commission pursuant to Rule 424, with any changes therein necessary to
reflect such supplementation or amendment.
(d) At the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter (with copies thereof for each of the
Underwriters) to the effect that (i) they are independent public
accountants with respect to FPL Group within the meaning of the Securities
Act and the Exchange Act and the applicable published rules and regulations
thereunder; (ii) in their opinion, the consolidated financial statements of
FPL Group audited by them and incorporated by reference in the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the published
rules and regulations thereunder; (iii) on the basis of performing a review
of interim financial information as described in Statement on Auditing
Standards No. 71, Interim Financial Information, and in Statement on
Auditing Standards No. 100, Interim Financial Information, on the unaudited
condensed consolidated financial statements of FPL Group, if any,
16
incorporated by reference in the Prospectus, a reading of the latest
available interim unaudited condensed consolidated financial statements of
FPL Group, if any, since the close of FPL Group's most recent audited
fiscal year, reading the minutes and consents of the Board of Directors and
the Finance Committee of the Board of Directors and of the shareholders of
FPL Group since the end of the most recent audited fiscal year, and
inquiries of officials of FPL Group who have responsibility for financial
and accounting matters (it being understood that the foregoing procedures
do not constitute an audit made in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters' purposes),
nothing has come to their attention which caused them to believe that (a)
the unaudited condensed consolidated financial statements of FPL Group, if
any, incorporated by reference in the Prospectus (1) do not comply as to
form in all material respects with the applicable accounting requirements
of the Securities Act and the Exchange Act and the published rules and
regulations thereunder and (2) except as disclosed in the Prospectus, are
not in conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited consolidated
financial statements of FPL Group incorporated by reference in the
Prospectus; (b) at the date of the latest available interim balance sheet
read by them and at a specified date not more than five days prior to the
Closing Date there was any change in the capital stock or long-term debt of
FPL Group and its subsidiaries, or decrease in FPL Group's common
shareholders' equity, in each case as compared with amounts shown in the
most recent consolidated balance sheet incorporated by reference in the
Prospectus, except in all instances for changes, increases or decreases
which the Prospectus discloses have occurred or may occur, or as occasioned
by the declaration, provision for, or payment of dividends, or as
occasioned by the sale of common stock pursuant to any employee or director
benefit or compensation plan or the dividend reinvestment plan or the
repurchase of common stock by FPL Group or which are described in such
letter; or (c) for the period from the date of the most recent [condensed]
consolidated balance sheet incorporated by reference in the Prospectus to
the latest available interim balance sheet read by them and for the period
from the date of the latest available interim balance sheet read by them to
a specified date not more than five days prior to the Closing Date, there
were any decreases, as compared with the corresponding period in the
preceding year, in total consolidated operating revenues or in net income,
except in all instances for decreases which the Prospectus discloses have
occurred or may occur, or which are described in such letter; and (iv) they
have carried out certain procedures and made certain findings, as specified
in such letter, with respect to certain amounts included in the Prospectus
and Exhibit 12 to the Registration Statement and such other items as the
Representatives may reasonably request.
(e) Since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus, and up to the Closing
Date, (i) there shall have been no material adverse change in the business,
properties or financial condition of [/2/,/3/(a) FPL Group Capital and its
subsidiaries taken as a whole or (b)] FPL Group and its subsidiaries taken
as a whole, except [/2/,/3/in each case] as disclosed in or contemplated by
the Registration Statement and Prospectus, and (ii) there shall have been
no material transaction entered into by [/2/,/3/(a) FPL Group Capital or
any of its subsidiaries that is material to FPL Group Capital and its
subsidiaries taken as a whole or (b)] FPL Group or any of its subsidiaries
17
that is material to FPL Group and its subsidiaries taken as a whole,
[/2/,/3/in each case] other than transactions disclosed in or contemplated
by the Registration Statement and the Prospectus, and transactions in the
ordinary course of business; and at the Closing Date, the Representatives
shall have received a certificate to such effect from [/2/,/3/each of FPL
Group Capital and] FPL Group signed by an officer of [/2/,/3/FPL Group
Capital or] FPL Group[/2/,/3/, as the case may be].
(f) All legal proceedings to be taken in connection with the issuance
and sale of the Securities shall have been satisfactory in form and
substance to Counsel for the Underwriters.
(g) [/1/The Securities] [/3/The Corporate Units constituting the
Securities shall have been approved for listing on The New York Stock
Exchange, Inc. ("NYSE") upon official notice of issuance and the Shares
issuable under the Purchase Contracts constituting a part of the
Securities] [/1/,/3/shall have been approved for listing on [/1/The New
York Stock Exchange, Inc. ("NYSE")] [/3/the NYSE] upon official notice of
issuance.]
In case any of the conditions specified above in this Section [8] shall not
have been fulfilled, this agreement may be terminated by the Representatives
upon mailing or delivering written notice thereof to FPL Group [/2/,/3/and FPL
Group Capital]. Any such termination shall be without liability of any party to
any other party except as otherwise provided in subsections (c) and (e) of
Section [7] hereof.
9. Condition of FPL Group's [/2/,/3/and FPL Group Capital's] Obligations.
The [/1/obligation] [/2/,/3/obligations] of FPL Group [/2/,/3/and FPL Group
Capital] to deliver the Securities shall be subject to the following condition:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall be
in effect on the Closing Date, and no proceedings for either such purpose
shall be pending before, or threatened by, the Commission on such date.
In case the condition specified above in this Section [9] shall not have
been fulfilled, this agreement may be terminated by FPL Group [/2/,/3/and FPL
Group Capital] upon mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in subsections (c) and (e) of
Section [7] hereof.
10. Indemnification.
(a) FPL Group [/2/,/3/and FPL Group Capital, jointly and severally,
agree] [/1/agrees] to indemnify and hold harmless each Underwriter, each
officer and director of each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law and to
reimburse each such Underwriter, officer, director and controlling person
18
for any legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) when and as incurred by them in
connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus (if used prior to the
Effective Date of the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the indemnity agreement contained in
this subsection (a) of Section [10] shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of, or based
upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing, to
FPL Group [/2/,/3/or FPL Group Capital] by or on behalf of any Underwriter,
through the Representatives, expressly for use in connection with the
preparation of any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from the Statements of
Eligibility; and provided, further, that the indemnity agreement contained
in this subsection (a) of Section [10] in respect of any preliminary
prospectus (and for purposes of clause (ii) below, the Prospectus) shall
not inure to the benefit of any Underwriter (or of any officer or director
of or person controlling such Underwriter) on account of any such losses,
claims, damages, liabilities, expenses or actions arising from the sale of
the Securities [of any series] to any person if such Underwriter shall have
failed to send or give to such person (i) with or prior to the written
confirmation of such sale, a copy of the Prospectus or the Prospectus as
amended or supplemented, if any amendments or supplements thereto shall
have been furnished at or prior to the time of written confirmation of the
sale involved, but exclusive of any Incorporated Documents, unless the
alleged omission or alleged untrue statement with respect to such
preliminary prospectus is not corrected in the Prospectus or the Prospectus
as amended or supplemented at the time of confirmation, or (ii) with or
prior to the delivery of such Securities to such person, a copy of any
amendment or supplement to the Prospectus which shall have been furnished
subsequent to such written confirmation and prior to the delivery of such
Securities to such person, but exclusive of any Incorporated Documents,
unless the alleged omission or alleged untrue statement with respect to
such preliminary prospectus or the Prospectus was not corrected in the
Prospectus or in such amendment or supplement at the time of such delivery
of such Securities. The indemnity agreement of FPL Group [/2/,/3/and FPL
Group Capital] contained in this subsection (a) of Section [10] and the
representations and warranties of FPL Group [/2/,/3/and FPL Group Capital]
contained in [/1/Section 3] [/2/,/3/Sections [3] and [4]] hereof,
[/2/,/3/respectively,] shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter,
officer, director or any such controlling person, and shall survive the
delivery of the Securities [of each series]. The Underwriters agree
promptly to notify [/2/,/3/each of] FPL Group [/2/,/3/and FPL Group
Capital], and each other Underwriter, of the commencement of any litigation
or proceedings against them or any of them, or any such officer, director
19
or controlling person in connection with the issuance and sale of the
Securities [of any series].
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless [/2/,/3/each of] FPL Group [/2/,/3/and FPL Group
Capital], [/1/its] [/2/,/3/their respective] officers and directors, and
each person who controls FPL Group [/2/,/3/or FPL Group Capital, as the
case may be] within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law, and to
reimburse each of them for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) when and as incurred
by them in connection with investigating any such losses, claims, damages
or liabilities, or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and in
conformity with information furnished in writing, to FPL Group [/2/,/3/or
FPL Group Capital] by or on behalf of such Underwriter, through the
Representatives, expressly for use in connection with the preparation of
the Registration Statement or the Prospectus or any amendment or supplement
to either thereof. The Underwriters hereby furnish to FPL Group [/2/,/3/and
FPL Group Capital] in writing expressly for use in the [preliminary
prospectus, the] Registration Statement and Prospectus [insert information
provided by the Underwriters]. FPL Group [/2/,/3/and FPL Group Capital each
acknowledge] [/1/acknowledges] that the statements set forth in the
preceding sentence constitute the only information furnished in writing by
or on behalf of the several Underwriters expressly for inclusion in any
preliminary prospectus, the Registration Statement or the Prospectus. The
indemnity agreement of the respective Underwriters contained in this
subsection (b) of Section [10] shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of FPL
Group [/2/,/3/,FPL Group Capital] or any of [/1/its] [/2/,/3/their
respective] officers or directors or any such other Underwriter or any such
controlling person, and shall survive the delivery of the Securities [of
each series]. FPL Group [/2/,/3/and FPL Group Capital agree] [/1/agrees]
promptly to notify the Representatives of the commencement of any
litigation or proceedings against FPL Group [/2/,/3/, FPL Group Capital]
(or any controlling person [/2/,/3/of either] thereof) or any of [/1/its]
[/2/,/3/their respective] officers or directors in connection with the
issuance and sale of the Securities [of any series].
(c) FPL Group [/2/,/3/, FPL Group Capital] and each of the several
Underwriters each agree that, upon the receipt of notice of the
commencement of any action against it, its officers and directors, or any
person controlling it as aforesaid, in respect of which indemnity or
contribution may be sought under the provisions of this Section [10], it
will promptly give written notice of the commencement thereof to the party
or parties against whom indemnity or contribution shall be sought
thereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or
parties from any liability which it or they may have to the indemnified
20
party otherwise than on account of such indemnity agreement. In case such
notice of any such action shall be so given, such indemnifying party or
parties shall be entitled to participate at its own expense in the defense
or, if it so elects, to assume (in conjunction with any other indemnifying
parties) the defense of such action, in which event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
reasonably satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel retained by
them; but if each of the indemnifying parties shall elect not to assume the
defense of such action, such indemnifying party or parties will reimburse
such indemnified party or parties for the reasonable fees and expenses of
any counsel retained by them; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying party
and counsel for the indemnifying party shall have reasonably concluded that
there may be a conflict of interest in the representation by such counsel
of both the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party or parties, to participate in the
defense of such action on behalf of such indemnified party or parties at
the expense of the indemnifying party or parties (it being understood,
however, that the indemnifying party or parties shall not be liable for the
expenses of more than one separate counsel representing the indemnified
parties who are parties to such action). FPL Group [/2/,/3/, FPL Group
Capital] and each of the several Underwriters each agree that without the
prior written consent of the other parties to such action who are parties
to this agreement, which consent shall not be unreasonably withheld, it
will not settle, compromise or consent to the entry of any judgment in any
claim or proceeding in respect of which such party intends to seek
indemnity or contribution under the provisions of this Section [10],
unless such settlement, compromise or consent (i) includes an unconditional
release of such other parties from all liability arising out of such claim
or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of such other
parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable law by
an indemnified party, each indemnifying party agrees to contribute to such
indemnified party with respect to any and all losses, claims, damages,
liabilities and expenses for which each such indemnification provided for
in subsections (a) or (b) above shall be unenforceable, in such proportion
as shall be appropriate to reflect (i) the relative fault of FPL Group
[/2/,/3/and FPL Group Capital] on the one hand and the Underwriters on the
other in connection with the statements or omissions which have resulted in
such losses, claims, damages, liabilities and expenses, (ii) the relative
benefits received by FPL Group [/2/,/3/and FPL Group Capital] on the one
hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this agreement, and (iii) any other relevant
equitable considerations; provided, however, that no indemnified party
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution with respect
thereto from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by FPL Group [/2/,/3/and FPL Group Capital]
21
or the Underwriters and each such party's relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. FPL Group [/2/,/3/, FPL Group Capital] and each of
the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were to be determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute in excess of the amount equal to the excess of (i) the total
price at which the Securities underwritten by it were offered to the
public, over (ii) the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of each
Underwriter to contribute pursuant to this subsection (d) are several and
not joint and shall be in the same proportion as such Underwriter's
obligation to underwrite Securities is to the total amount of Securities
set forth in Schedule II hereto.
11. Termination. This agreement may be terminated by the Representatives
by delivering written notice thereof to [/1/,/3/FPL Group] [/2/FPL Group
Capital], at any time prior to the Closing Date, if after the date hereof and at
or prior to the Closing Date:
(a) (i) there shall have occurred any general suspension of trading in
securities on [/2/The New York Stock Exchange, Inc. (the "NYSE")]
[/1/,/3/the NYSE] or there shall have been established by the NYSE or by
the Commission or by any federal or state agency or by the decision of any
court any limitation on prices for such trading or any general restrictions
on the distribution of securities, or trading in any securities of FPL
Group [/2/,/3/or FPL Group Capital] shall have been suspended or limited by
any exchange located in the United States or on the over-the-counter market
located in the United States or a general banking moratorium declared by
New York or federal authorities or (ii) there shall have occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities, including, but not limited to, an escalation of
hostilities which existed prior to the date of this agreement, any other
national or international calamity or crisis or any material adverse change
in financial, political or economic conditions affecting the United States,
the effect of any such event specified in this clause (ii) being such as to
make it, in the reasonable judgment of the Representative, impracticable or
inadvisable to proceed with the offering of the Shares as contemplated in
the Prospectus or for the Underwriters to enforce contracts for the sale of
the Securities [/2/,/3/; or
(b) (i) there shall have been any downgrading or any notice of any
intended or potential downgrading in the ratings accorded to the Debentures
or any securities of FPL Group Capital which are of the same class as the
Debentures by either [▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's")] or
[Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("S&P")], or (ii) either [Moody's] or [S&P] shall have
publicly announced that either has under surveillance or review, with
possible negative implications, its ratings of the Debentures [of each
series] or any securities of FPL Group Capital which are of the same class
as the Debentures [of each series], the effect of any such event specified
in (i) or (ii) above being such as to make it, in the reasonable judgment
of the Representative, impracticable or inadvisable to proceed with the
22
offering of the Debentures as contemplated in the Prospectus or for the
Underwriters to enforce contracts for the sale of the Securities.
This agreement may also be terminated at any time prior to the Closing Date if
in the judgment of the Representatives the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus prepared and
furnished by FPL Group [/2/,/3/and FPL Group Capital] after the date hereof
reflects a material adverse change in the business, properties or financial
condition of FPL Group and its subsidiaries taken as a whole [/2/,/3/or FPL
Group Capital and its subsidiaries taken as a whole] which renders it either
inadvisable to proceed with such offering, if any, or inadvisable to proceed
with the delivery of the Securities [of any series] to be purchased hereunder.
Any termination of this agreement pursuant to this Section [11] shall be
without liability of any party to any other party except as otherwise provided
in subsections (c) and (e) of Section [7] hereof.
12. Miscellaneous. The validity and interpretation of this agreement shall
be governed by the laws of the State of New York without regard to conflict of
law principles thereunder. This agreement shall inure to the benefit of, and be
binding upon, FPL Group [/2/,/3/, FPL Group Capital], the several Underwriters
and, with respect to the provisions of Section [10] hereof, each officer,
director or controlling person referred to in said Section [10], and their
respective successors. Nothing in this agreement is intended or shall be
construed to give to any other person or entity any legal or equitable right,
remedy or claim under or in respect of this agreement or any provision herein
contained. The term "successors" as used in this agreement shall not include any
purchaser, as such purchaser, of any Securities from any of the several
Underwriters.
13. Notices. All communications hereunder shall be in writing or by
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL
Group [/2/,/3/or FPL Group Capital], shall be mailed or delivered to it at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
23
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
FPL Group, Inc.
By:
--------------------------
Name:
Title:
[/2/,/3/FPL Group Capital Inc
By:
--------------------------
Name:
Title:]
Accepted and delivered as of the date first above written:
By:
----------------------------------------
Name:
Title:
Acting on [its] [their] own behalf and on behalf of the other several
Underwriters referred to in the foregoing agreement.
24
SCHEDULE I
Underwriting Agreement dated __________________ Registration Statement Nos.
[/3/33-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ and] 333-_______,
333-_______-01, 333-_______-02, 333-_______-03, 333-_______-04 and
333-_______-05 Representatives and Addresses:
Securities:
Designation:
[/1/Number of Shares:]
[/2/,/3/Indenture dated as of __________, 200_]
[/2/Principal Amount:]
[/3/Number of Units:]
[/3/Aggregate Stated Amount:]
[/2/Date of Maturity:]
[/2/Interest Rate:]
Underwriting Discount:
Public Offering Price:
Dealers' Concession:
Purchase Price:
Closing Date, Time and Location:
_________, 200_ at the offices of
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at ____
SCHEDULE II
[/1/,/3/Number of Securities]
Underwriter [/2/Principal Amount of Debentures]
----------- -----------------------------------
[names of Underwriters]
TOTAL
SCHEDULE III
[LETTERHEAD OF STEEL ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
[/1/We have acted as counsel to FPL Group, Inc. ("FPL Group") (a) in
connection with the authorization and issuance by FPL Group of __________ shares
of its common stock, $.01 par value ("Common Stock"), including the preferred
share purchase rights attached thereto (the "Rights") (collectively referred to
as the "Shares")] [/2/We have acted as counsel to FPL Group, Inc. ("FPL Group")
and FPL Group Capital Inc ("FPL Group Capital") (a) in connection with the
authorization and issuance by FPL Group Capital of $___________ aggregate
principal amount of its _____ Debentures, Series due ___________________ [(the
"____ Debentures") and $___________ aggregate principal of its ______
Debentures, Series due ___________________ (the "___ Debentures", together with
the ___ Debentures,] [(the "Debentures" or the "Securities")], issued under the
Indenture (for Unsecured Debt Securities), dated as of June 1, 1999 (the
"Indenture"), from FPL Group Capital to The Bank of New York, as Trustee, which
Debentures are absolutely, irrevocably and unconditionally guaranteed (the
"Guarantee") by FPL Group pursuant to that Guarantee Agreement dated as of June
1, 1999 from FPL Group to The Bank of New York, as Guarantee Trustee (the
"Guarantee Agreement")] [/3/We have acted as counsel to FPL Group, Inc. ("FPL
Group") and FPL Group Capital Inc ("FPL Group Capital") (a) in connection with
the authorization and issuance by FPL Group of its new securities (the
"Securities"), with such Securities consisting of ________ equity units of FPL
Group, initially consisting of ________ of FPL Group's corporate units
("Corporate Units"), and the authorization and issuance by FPL Group Capital of
certain of its debt securities in connection therewith] and (b) in connection
with the sale of the [/1/Shares] [/2/,/3/Securities] to you in accordance with
the Underwriting Agreement, dated as of ______________ (the "Agreement"),
[/1/between you and FPL Group] [,2,/3/among you, FPL Group and FPL Group
Capital]. Capitalized terms used in this opinion but not defined shall have the
meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) [Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇, as
amended, effective on April 3, 2003, which registration statement was filed
jointly by FPL Group, FPL Group Capital [/1/Inc ("FPL Group Capital")], FPL
Group Capital Trust I and FPL Group Capital Trust II with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act")]; (2) Registration Statement Nos. 333-_______,
333-_______-01, 333-_______-02, 333-________-03 and 333-______-04 effective on
___________which registration statement was filed by FPL Group, FPL Group
Capital, FPL Group Capital Trust II, FPL Group Capital Trust III, FPL Group
Trust I and FPL Group Trust II with the Commission under the Securities Act
(references herein to the term "Registration Statement" as of any given date
shall mean Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇
and ▇▇▇-▇▇▇▇▇▇-▇▇ and Registration Statement Nos. 333-_______, 333-_______-01,
333-_______-02, 333-________-03, 333-_______-04 and 333-_______-05, each as
amended and supplemented to such date, including those documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents")); (3) the [combined] prospectus
dated ______________ forming a part of Registration Statement Nos. 333-_______,
333-_______-01, 333-_______-02, 333-________-03, 333-_______-04 and
333-_______-05, as supplemented by a prospectus supplement dated ___________
relating to the [/1/Shares] [/2/,/3/Securities], both such prospectus and
prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Securities filed pursuant to Rule 424, and as further amended and
supplemented to such date, including the Incorporated Documents); [/2/,/3/(4)
the Indenture; (5) the Guarantee Agreement;] (6) the corporate proceedings of
FPL Group with respect to the Registration Statement [/2/and the Guarantee]
[/3/, the Guarantee, the Pledge Agreement, the Purchase Contract Agreement and
the Remarketing Agreement]; (7) the corporate proceedings of FPL Group Capital
with respect to the Registration Statement [/2/and the Debentures]; [/3/, the
Debentures and the Remarketing Agreement]; (8) FPL Group's Restated Articles of
Incorporation as amended to the date hereof (the "FPL Group Charter") and Bylaws
as amended to the date hereof (the "FPL Group Bylaws"); [/2/,/3/(9) FPL Group
Capital's Articles of Incorporation as amended to the date hereof (the "FPL
Group Capital Charter") and Bylaws as amended to the date hereof (the "FPL Group
Capital Bylaws")]; [/3/(10) the Remarketing Agreement; (11) the Pledge
Agreement; (12) the Purchase Contract Agreement;] [/1/,/3/(13) the Rights
Agreement, dated as of July 1, 1996, as amended, between FPL Group and
Computershare Investor Services, LLC, as successor to EquiServe Trust Company,
N.A. (the "Rights Agreement"); (14) the corporate proceedings of FPL Group with
respect to the Rights Agreement and the Amendment to Rights Agreement;] and (15)
such other corporate records, certificates and other documents and such
questions of law as we have considered necessary or appropriate for the purposes
of this opinion.
[/1/,/3/We have also reviewed the relevant statutory provisions of the
Florida Business Corporation Act, as amended, such other legal authority in
Florida as we have deemed relevant and, because the issuance of the Rights
would, if challenged, present as to a Florida corporation a case of first
impression in the courts of Florida and because the issuance of interests such
as the Rights has to our knowledge yet to be the subject of any reported
appellate opinion of a Florida court, we have reviewed certain case law with
respect to the distribution of such rights in other jurisdictions.]
[/1/,/3/For purposes of the opinion related to the Rights expressed herein,
we have assumed that (1) FPL Group has sufficient authorized but unissued shares
of preferred stock fully to provide for the exercise of the Rights without
amendment of the FPL Group Charter to increase the number of authorized but
unissued shares of preferred stock, (2) no member of the Board of Directors of
FPL Group has any personal interest therein (except for an interest arising
solely from ownership of Common Stock) and (3) in approving the Rights Agreement
and the transactions provided for therein, each member of the Board of Directors
has discharged his duties in the good faith exercise of his business judgment,
in a manner he reasonably believed to be in the best interest of FPL Group and
III-2
its shareholders and with such care as an ordinarily prudent person in a like
position would use under similar circumstances and that he did not act solely or
primarily to perpetuate his office. Nothing has come to our attention, after due
inquiry with respect thereto, that would lead us to believe that we are not
justified in relying on such assumptions.]
Upon the basis of the foregoing, we advise you that:
I.
FPL Group [/2/,/3/and FPL Group Capital each is] [/1/is] a validly
organized and existing corporation and is in good standing under the laws of the
State of Florida, and [/2/,/3/each] has valid franchises, licenses and permits
adequate for the conduct of its [/2/,/3/respective] businesses.
II.
FPL Group [/2/,/3/and FPL Group Capital each is] [/1/is] a corporation duly
authorized by its Charter to conduct the businesses which it is now conducting
as set forth in the Prospectus.
III.
[/2/,/3/The Indenture has been duly authorized by FPL Group Capital by all
necessary corporate action, has been duly and validly executed and delivered by
FPL Group Capital, and is a valid and binding obligation of FPL Group Capital
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
IV.
[/2/,/3/The Guarantee Agreement has been duly authorized by FPL Group by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group, and is a valid and binding obligation of FPL Group enforceable
against FPL Group in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
V.
[/2/,/3/The Debentures [of each series] are valid and binding obligations
of FPL Group Capital enforceable against it in accordance with their
[respective] terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of equity.]
VI.
[/3/Each of the Purchase Contract Agreement, the Pledge Agreement and the
Purchase Contracts relating to the Securities (the "Purchase Contracts") has
been duly and validly authorized, executed and delivered by FPL Group and each
III-3
of the Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by each of FPL Group and FPL Group Capital.]
VII.
[/3/The Purchase Contract Agreement, the Pledge Agreement and the Purchase
Contracts are valid and binding obligations of FPL Group enforceable in
accordance with their respective terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity and, with respect to the Pledge Agreement, subject to any principles of
public policy limiting the rights to enforce the indemnification and exculpation
provisions contained therein.]
VIII.
[/1/The shares of Common Stock constituting a part of the Shares have been
duly authorized and are validly issued, fully paid and non-assessable and the
Rights are validly issued subject to the terms of the Rights Agreement.] [/3/The
Common Stock issuable pursuant to the Purchase Contracts has been validly
authorized and reserved for issuance and, when issued and delivered by FPL Group
against payment therefor in accordance with the provisions of the Purchase
Contract Agreement, the Purchase Contracts and the Pledge Agreement, will be
fully paid and non-assessable and the related Rights, if any, when issued in
accordance with the provisions of the Rights Agreement will be validly issued
subject to the terms of the Rights Agreement.] [/1/,/3/The shareholders of FPL
Group have no preemptive rights pursuant to Florida law, the FPL Group Charter
or the FPL Group Bylaws, or, to our knowledge, any agreement or instrument the
terms of which are known to us to which FPL Group is now a party, to subscribe
for any of the Common Stock] [/3/issuable pursuant to the Purchase Contracts or
any of the Corporate Units].
IX.
To our knowledge after due inquiry, [/2/,/3/FPL Group Capital or one or
more of its direct or indirect subsidiaries has good and marketable title to all
of the membership interests in FPL Energy, LLC and ESI Energy, LLC free and
clear of all liens and encumbrances, except such as do not materially affect the
value thereof, and] FPL Group or one or more of its direct or indirect
subsidiaries has good and marketable title to all of the common stock of Florida
Power & Light Company and FPL Group Capital free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
X.
Except as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, as to which we express no
opinion, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
opinion, the Registration Statement, at the Effective Date (as such term is
defined in the Agreement) and the Prospectus, at the date it was filed with the
Commission pursuant to Rule 424 (such date, the "424 Date"), complied as to form
III-4
in all material respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the Commission
thereunder. The Incorporated Documents (except as to the financial statements
and other financial or statistical data contained or incorporated by reference
therein, as to which we express no opinion), at the times they were filed with
the Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement became, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
XI.
The consummation of the transactions contemplated in the Agreement and the
fulfillment of the terms contained in the Agreement [/2/,/3/and, with respect to
the Debentures, the compliance by FPL Group Capital with all the terms and
provisions of the Indenture and by FPL Group with all the terms and provisions
of the Guarantee Agreement], will not result in a breach of any of the terms or
provisions of, or constitute a default under, as the case may be, the FPL Group
Charter or the FPL Group Bylaws [/2/,/3/or the FPL Group Capital Charter or the
FPL Group Capital Bylaws], or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us to which FPL Group
[/2/,/3/or FPL Group Capital], or any of [/1/its] [/2/,/3/their respective]
subsidiaries [/2/,/3/, as the case may be,] is now a party, except where such
breach or default would not have a material adverse effect on the business,
properties or financial condition of FPL Group [/2/,/3/or FPL Group Capital],
[/2/,/3/each] together with its [/2/,/3/respective] subsidiaries taken as a
whole [/2/,/3/, as the case may be].
XII.
To the best of our knowledge, no approval, authorization, consent or order
of any public board or body (other than in connection or in compliance with the
provisions of the blue sky laws of any jurisdiction, as to which we express no
opinion, and other than those that have been obtained) is legally required for
the authorization of the issuance and sale of the [/2/Debentures as guaranteed
by the Guarantee] [/1/Shares] [/3/Securities, or the Shares issuable pursuant to
the Purchase Contracts].
XIII.
The statements made in the Prospectus under the headings [/1/"Description
of Common Stock"] [/2/"Description of Offered Debt Securities", "Description of
the Guarantee"] [/3/"Descripton of Common Stock", "Description of Offered Debt
Securities", "Description of the Guarantee", "Description of Stock Purchase
Contract and Stock Purchase Units"] [and _______________], insofar as they
purport to constitute summaries of the terms of the documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
XIV.
III-5
[/2/The Indenture and the Guarantee Agreement are duly qualified under the
Trust Indenture Act of 1939, as amended.] [/3/The Indenture, the Guarantee
Agreement and the Purchase Contract Agreement are duly qualified under the Trust
Indenture Act of 1939, as amended.]
XV.
[/1/The Shares] [/3/The Securities] [/1/,/3/ have been listed, upon
official notice of issuance, on The New York Stock Exchange, Inc.]
XVI.
Except as stated or referred to in the Prospectus, to our knowledge after
due inquiry there is no material pending legal proceeding to which FPL Group or
any of its subsidiaries [/2/,/3/or FPL Group Capital or any of its subsidiaries]
is a party or of which property of FPL Group or any of its subsidiaries
[/2/,/3/or FPL Group Capital or any of its subsidiaries] is the subject which is
reasonably likely to be determined adversely and, if determined adversely, might
reasonably be expected to have a material adverse effect on FPL Group and its
subsidiaries taken as a whole [/2/,/3/or FPL Group Capital and its subsidiaries
taken as a whole, as the case may be,] and, to the best of our knowledge, no
such proceeding is known to be contemplated by governmental authorities.
XVII.
The Agreement has been duly and validly authorized, executed and delivered
by [/2/,/3/each of] FPL Group [/2/,/3/and FPL Group Capital].
In rendering the foregoing opinion, we have assumed that the certificates
representing [/1/,/3/the Shares] [/3/and the Corporate Units] [/2/the
Securities] will conform to specimens examined by us, [/1/,/3/that the
certificates representing the Shares] [/1/,/3/will be duly countersigned by the
transfer agent and duly registered by the registrar thereof and] [/2/,/3/that
the Debentures will be duly authenticated by the Trustee under the Indenture
and] [/3/and the Corporate Units will be duly authenticated by the Purchase
Contract Agent under the Purchase Contract Agreement and] will be delivered
against payment of the purchase price as provided in the Agreement and that the
signatures on all documents examined by us are genuine, assumptions which we
have not independently verified. [/3/In addition, we have assumed for purposes
of the opinion related to the Rights expressed herein that, prior to the
issuance of any Common Stock pursuant to the terms of the Purchase Contracts,
there shall have been no amendment or termination of the Rights Agreement, or
other action, affecting the provisions for distribution of Rights upon issuance
of Common Stock as in effect on the date hereof.] [Insert additional
assumptions, if applicable]
Other than with respect to the opinion expressed in Paragraph [XIII]
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to the matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL Group
[/2/,/3/and FPL Group Capital], certain of [/1/its] [/2/,/3/their] other legal
counsel, [/1/its] [/2/,/3/their] independent public accountants and your
representatives. Additionally, as counsel to FPL Group [/2/,/3/and FPL Group
Capital], we have responsibility for certain of [/1/its] [/2/,/3/their] legal
III-6
matters. On the basis of such consideration, review and discussion, but without
independent check or verification except as stated, nothing has come to our
attention that would lead us to believe (except as to the financial statements
and other financial or statistical data contained or incorporated by reference
therein, as to which we express no belief, and except for those parts of the
Registration Statement that constitute the Statements of Eligibility on Form
T-1, as to which we express no belief), that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements contained therein not misleading or (except as aforesaid)
that the Prospectus at the 424 Date included, or at the date hereof includes, an
untrue statement of a material fact or the Prospectus at the 424 Date omitted,
or at the date hereof omits, to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the Florida Bar and do not hold ourselves out as experts
on the laws of New York, and accordingly, this opinion is limited to the laws of
Florida and the federal laws of the United States, insofar as they bear on
matters covered hereby. As to all matters of New York law [/3/ and as to all
opinions expressed in Paragraph [VII] hereof], we have relied, with your
consent, upon an opinion of even date herewith addressed to you by ▇▇▇▇▇▇ ▇▇▇▇ &
Priest LLP, New York, New York. As to all matters of Florida law, ▇▇▇▇▇▇ ▇▇▇▇ &
Priest LLP and Hunton & ▇▇▇▇▇▇▇▇ LLP are hereby authorized to rely upon this
opinion as though it were rendered to each of them.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention., or any change in law
that hereafter occurs.
Very truly yours,
STEEL ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
III-7
SCHEDULE IV
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
[/1/We have acted as special counsel to FPL Group, Inc. ("FPL Group") (a)
in connection with the authorization and issuance by FPL Group of __________
shares of its common stock, $.01 par value ("Common Stock"), including the
preferred share purchase rights attached thereto (the "Rights") (collectively
referred to as the "Shares")] [/2/We have acted as counsel to FPL Group, Inc.
("FPL Group") and FPL Group Capital Inc ("FPL Group Capital") (a) in connection
with the authorization and issuance by FPL Group Capital of $___________
aggregate principal amount of its _____ Debentures, Series due
___________________ [(the "____ Debentures") and $___________ aggregate
principal of its ______ Debentures, Series due ___________________ (the "___
Debentures", together with the ___ Debentures,] [(the "Debentures" or the
"Securities")], issued under the Indenture (for Unsecured Debt Securities),
dated as of June 1, 1999 (the "Indenture"), from FPL Group Capital to The Bank
of New York, as Trustee, which Debentures are absolutely, irrevocably and
unconditionally guaranteed (the "Guarantee") by FPL Group pursuant to that
Guarantee Agreement dated as of June 1, 1999 from FPL Group to The Bank of New
York, as Guarantee Trustee (the "Guarantee Agreement")] [/3/We have acted as
counsel to FPL Group, Inc. ("FPL Group") and FPL Group Capital Inc ("FPL Group
Capital") (a) in connection with the authorization and issuance by FPL Group of
its new securities (the "Securities"), with such Securities consisting of
________ equity units of FPL Group, initially consisting of ________ of FPL
Group's corporate units ("Corporate Units"), and the authorization and issuance
by FPL Group Capital of certain of its debt securities in connection therewith]
and (b) in connection with the sale of the [/1/Shares] [/2/,/3/Securities] to
you in accordance with the Underwriting Agreement, dated as of ______________
(the "Agreement"), [/1/between you and FPL Group] [,2,/3/among you, FPL Group
and FPL Group Capital]. Capitalized terms used in this opinion but not defined
shall have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇
effective on April 3, 2003, which registration statement was filed jointly by
FPL Group, FPL Group Capital [/1/Inc ("FPL Group Capital")], FPL Group Capital
Trust I and FPL Group Capital Trust II with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"); (2) Registration Statement Nos. 333-_______, 333-_______-01,
333-_______-02, 333-________-03 and 333-______-04 effective on ___________which
registration statement was filed by FPL Group, FPL Group Capital, FPL Group
Capital Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL Group
Trust II with the Commission under the Securities Act (references herein to the
term "Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ and
Registration Statement Nos. 333-_______, 333-_______-01, 333-_______-02,
333-________-03 and 333-______-04, each as amended and supplemented to such
date, including those documents incorporated by reference therein as of such
date pursuant to Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents")); (3) the combined prospectus dated ______________ forming a part of
Registration Statement Nos. 333-_______, 333-_______-01, 333-_______-02,
333-________-03 and 333-________-04, as supplemented by a prospectus supplement
dated ___________ relating to the [/1/Shares] [/2/,/3/Securities], both such
prospectus and prospectus supplement filed pursuant to Rule 424(b) under the
Securities Act ("Rule 424" and references herein to the "Prospectus" as of any
given date shall refer to such prospectus, as supplemented by the prospectus
supplement relating to the Securities filed pursuant to Rule 424, and as further
amended and supplemented to such date, including the Incorporated Documents);
[/2/,/3/(4) the Indenture; (5) the Guarantee Agreement;] (6) the corporate
proceedings of FPL Group with respect to the Registration Statement [/2/and the
Guarantee] [/3/, the Guarantee, the Pledge Agreement, the Purchase Contract
Agreement and the Remarketing Agreement]; (7) the corporate proceedings of FPL
Group Capital with respect to the Registration Statement [/2/and the
Debentures]; [/3/, the Debentures and the Remarketing Agreement]; (8) FPL
Group's Restated Articles of Incorporation as amended to the date hereof (the
"FPL Group Charter") and Bylaws as amended to the date hereof (the "FPL Group
Bylaws"); [/2/,/3/(9) FPL Group Capital's Articles of Incorporation as amended
to the date hereof (the "FPL Group Capital Charter") and Bylaws as amended to
the date hereof (the "FPL Group Capital Bylaws")]; [/3/(10) the Remarketing
Agreement; (11) the Pledge Agreement; (12) the Purchase Contract Agreement;]
[/1/,/3/(13) the Rights Agreement, dated as of July 1, 1996, as amended, between
FPL Group and Computershare Investor Services, LLC, as successor to EquiServe
Trust Company, N.A. (the "Rights Agreement"); (14) the corporate proceedings of
FPL Group with respect to the Rights Agreement and the Amendment to Rights
Agreement;] and (15) such other corporate records, certificates and other
documents and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of the foregoing, we advise you that:
I.
[/2/,/3/The Indenture has been duly authorized by FPL Group Capital by all
necessary corporate action, has been duly and validly executed and delivered by
FPL Group Capital, and is a valid and binding obligation of FPL Group Capital
enforceable against FPL Group Capital in accordance with its terms, except as
limited or affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies generally and
general principles of equity.]
II.
[/2/,/3/The Guarantee Agreement has been duly authorized by FPL Group by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group, and is a valid and binding obligation of FPL Group enforceable
against FPL Group in accordance with its terms, except as limited or affected by
IV-2
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
III.
[/2/,/3/The Debentures [of each series] are valid and binding obligations
of FPL Group Capital enforceable against it in accordance with their
[respective] terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of equity.]
IV.
[/3/Each of the Purchase Contract Agreement, the Pledge Agreement and the
Purchase Contracts relating to the Securities (the "Purchase Contracts") has
been duly and validly authorized, executed and delivered by FPL Group and each
of the Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by each of FPL Group and FPL Group Capital.]
V.
[/3/The Purchase Contract Agreement, the Pledge Agreement and the Purchase
Contracts are valid and binding obligations of FPL Group enforceable in
accordance with their respective terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity and, with respect to the Pledge Agreement, subject to any principles of
public policy limiting the rights to enforce the indemnification and exculpation
provisions contained therein.]
VI.
[/1/The shares of Common Stock constituting a part of the Shares have been
duly authorized and are validly issued, fully paid and non-assessable and the
Rights are validly issued subject to the terms of the Rights Agreement.] [/3/The
Common Stock issuable pursuant to the Purchase Contracts has been validly
authorized and reserved for issuance and, when issued and delivered by FPL Group
against payment therefor in accordance with the provisions of the Purchase
Contract Agreement, the Purchase Contracts and the Pledge Agreement, will be
fully paid and non-assessable and the related Rights, if any, when issued in
accordance with the provisions of the Rights Agreement will be validly issued
subject to the terms of the Rights Agreement.] [/1/,/3/The shareholders of FPL
Group have no preemptive rights pursuant to Florida law, the FPL Group Charter
or the FPL Group Bylaws, or, to our knowledge, any agreement or instrument the
terms of which are known to us to which FPL Group is now a party, to subscribe
for any of the Common Stock] [/3/issuable pursuant to the Purchase Contracts or
any of the Corporate Units].
VII.
IV-3
To our knowledge after due inquiry, [/2/,/3/FPL Group Capital or one or
more of its direct or indirect subsidiaries has good and marketable title to all
of the membership interests in FPL Energy, LLC and ESI Energy, LLC free and
clear of all liens and encumbrances, except such as do not materially affect the
value thereof, and] FPL Group or one or more of its direct or indirect
subsidiaries has good and marketable title to all of the common stock of Florida
Power & Light Company and FPL Group Capital free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
VIII.
Except as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, as to which we express no
opinion, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
opinion, the Registration Statement, at the Effective Date (as such term is
defined in the Agreement) and the Prospectus, at the date it was filed with the
Commission pursuant to Rule 424 (such date, the "424 Date"), complied as to form
in all material respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the Commission
thereunder. The Incorporated Documents (except as to the financial statements
and other financial or statistical data contained or incorporated by reference
therein, as to which we express no opinion), at the times they were filed with
the Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement became, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
IX.
The consummation of the transactions contemplated in the Agreement and the
fulfillment of the terms contained in the Agreement [/2/,/3/and, with respect to
the Debentures, the compliance by FPL Group Capital with all the terms and
provisions of the Indenture and by FPL Group with all the terms and provisions
of the Guarantee Agreement], will not result in a breach of any of the terms or
provisions of, or constitute a default under, as the case may be, the FPL Group
Charter or the FPL Group Bylaws [/2/,/3/or the FPL Group Capital Charter or the
FPL Group Capital Bylaws], or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us to which FPL Group
[/2/,/3/or FPL Group Capital], or any of [/1/its] [/2/,/3/their respective]
subsidiaries [/2/,/3/, as the case may be,] is now a party, except where such
breach or default would not have a material adverse effect on the business,
properties or financial condition of FPL Group [/2/,/3/or FPL Group Capital],
[/2/,/3/each] together with its [/2/,/3/respective] subsidiaries taken as a
whole [/2/,/3/, as the case may be].
X.
To the best of our knowledge, no approval, authorization, consent or order
of any public board or body (other than in connection or in compliance with the
provisions of the blue sky laws of any jurisdiction, as to which we express no
opinion, and other than those that have been obtained) is legally required for
IV-4
the authorization of the issuance and sale of the [/2/Debentures as guaranteed
by the Guarantee] [/1/Shares] [/3/Securities, or the Shares issuable pursuant to
the Purchase Contracts].
XI.
The statements made in the Prospectus under the headings [/1/"Description
of Common Stock"] [/2/"Description of Offered Debt Securities", "Description of
the Guarantee"] [/3/"Descripton of Common Stock", "Description of Offered Debt
Securities", "Description of the Guarantee", "Description of Stock Purchase
Contract and Stock Purchase Units"] [and _______________], insofar as they
purport to constitute summaries of the terms of the documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
XII.
[/2/The Indenture and the Guarantee Agreement are duly qualified under the
Trust Indenture Act of 1939, as amended.] [/3/The Indenture, the Guarantee
Agreement and the Purchase Contract Agreement are duly qualified under the Trust
Indenture Act of 1939, as amended.]
XIII.
[/1/The Shares][/3/The Securities] [/1/,/3/have been listed, upon official
notice of issuance, on The New York Stock Exchange, Inc.]
XIII.
The Agreement has been duly and validly authorized, executed and delivered
by [/2/,/3/each of] FPL Group [/2/,/3/and FPL Group Capital].
In rendering the foregoing opinion, we have assumed that the certificates
representing [/1/,/3/the Shares] [/3/and the Corporate Units] [/2/the
Securities] will conform to specimens examined by us, [/3/that the certificates
representing the Shares] [/1/,/3/will be duly countersigned by the transfer
agent and duly registered by the registrar thereof and] [/2/,/3/that the
Debentures will be duly authenticated by the Trustee under the Indenture] [/3/
and the Corporate Units will be duly authenticated by the Purchase Contract
Agent under the Purchase Contract Agreement and] will be delivered against
payment of the purchase price as provided in the Agreement and that the
signatures on all documents examined by us are genuine, assumptions which we
have not independently verified. [/3/In addition, we have assumed for purposes
of the opinion related to the Rights expressed herein that, prior to the
issuance of any Common Stock pursuant to the terms of the Purchase Contracts,
there shall have been no amendment or termination of the Rights Agreement, or
other action, affecting the provisions for distribution of Rights upon issuance
of Common Stock as in effect on the date hereof.] [Insert additional
assumptions, if applicable]
The opinion set forth in Paragraph [VI] herein is subject to the same
limitations and qualifications contained in the opinion of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇
LLP referred to below.
IV-5
Other than with respect to the opinion expressed in Paragraph [XI] hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to the matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL Group
[/2/,/3/and FPL Group Capital], certain of [/1/its] [/2/,/3/their] other legal
counsel, [/1/its] [/2/,/3/their] independent public accountants and your
representatives. On the basis of such consideration, review and discussion, but
without independent check or verification except as stated, nothing has come to
our attention that would lead us to believe (except as to the financial
statements and other financial or statistical data contained or incorporated by
reference therein, as to which we express no belief, and except for those parts
of the Registration Statement that constitute the Statements of Eligibility on
Form T-1, as to which we express no belief), that the Registration Statement, at
the Effective Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements contained therein not misleading or (except as aforesaid)
that the Prospectus at the 424 Date included, or at the date hereof includes, an
untrue statement of a material fact or the Prospectus at the 424 Date omitted,
or at the date hereof omits, to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the New York Bar and do not hold ourselves out as experts
on the laws of Florida. We do not pass upon matters governed by Florida law,
including without limitation, the incorporation of FPL Group Capital or FPL
Group, titles to property or franchises. As to all matters of Florida law
[/1/,/3/and as to all opinions expressed in Paragraph [VI] hereof] we have
relied, with your consent, upon an opinion of even date herewith addressed to
you by Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇. As to all matters of
New York law, Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP is hereby authorized to rely upon this
opinion as though it were rendered to Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
IV-6
SCHEDULE V
[LETTERHEAD OF HUNTON & ▇▇▇▇▇▇▇▇ LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
[/1/We have acted as counsel for you in connection with your several
purchases from FPL Group, Inc. ("FPL Group") of __________ shares of its common
stock, $.01 par value ("Common Stock"), including the preferred share purchase
rights attached thereto (the "Rights") (collectively referred to as the
"Shares")] [/2/We have acted as counsel for you in connection with your several
purchases from FPL Group, Inc. ("FPL Group") and FPL Group Capital Inc ("FPL
Group Capital") of $___________ aggregate principal amount of its _____
Debentures, Series due ___________________ [(the "____ Debentures") and
$___________ aggregate principal of its ______ Debentures, Series due
___________________ (the "___ Debentures", together with the ___ Debentures,]
[(the "Debentures" or the "Securities")], issued under the Indenture (for
Unsecured Debt Securities), dated as of June 1, 1999 (the "Indenture"), from FPL
Group Capital to The Bank of New York, as Trustee, which Debentures are
absolutely, irrevocably and unconditionally guaranteed (the "Guarantee") by FPL
Group ("FPL Group") pursuant to that Guarantee Agreement dated as of June 1,
1999 from FPL Group to The Bank of New York, as Guarantee Trustee (the
"Guarantee Agreement")] [/3/We have acted as counsel for you in connection with
your several purchases from FPL Group, Inc. ("FPL Group") of its new securities
("Securities"), with such Securities consisting of _______ equity units of FPL
Group, initially consisting of _________of FPL Group's corporate units
("Corporate Units")] pursuant to the Underwriting Agreement, dated as of
______________ (the "Agreement"), [/1/between you and FPL Group] [/2/,/3/among
you, FPL Group and FPL Group Capital Inc ("FPL Group Capital")]. Capitalized
terms used in this opinion but not defined shall have the meanings set forth in
the Agreement.
We have examined such documents and satisfied ourselves as to such other
matters as we have deemed necessary in order to enable us to express this
opinion.
On the foregoing basis, we are of the opinion that:
1. [/2/,/3/The Indenture has been duly authorized by FPL Group Capital by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group Capital, and is a valid and binding obligation of FPL Group Capital
enforceable against FPL Group Capital in accordance with its terms, except as
limited or affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies generally and
general principles of equity.]
2. [/2/,/3/The Guarantee Agreement has been duly authorized by FPL Group
by all necessary corporate action, has been duly and validly executed and
delivered by FPL Group, and is a valid and binding obligation of FPL Group
enforceable against FPL Group in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and general
principles of equity.]
3. [/2/,/3/The Debentures [of each series] are valid and binding
obligations of FPL Group Capital enforceable against it in accordance with their
[respective] terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of equity.]
4. [/3/Each of the Purchase Contract Agreement, the Pledge Agreement and
the Purchase Contracts relating to the Securities (the "Purchase Contracts") has
been duly and validly authorized, executed and delivered by FPL Group and each
of the Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by each of FPL Group and FPL Group Capital.
5. [/3/The Purchase Contract Agreement, the Pledge Agreement and the
Purchase Contracts are valid and binding obligations of FPL Group enforceable in
accordance with their respective terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity and, with respect to the Pledge Agreement, subject to any principles of
public policy limiting the rights to enforce the indemnification and exculpation
provisions contained therein.]
6. [/1/The shares of Common Stock constituting a part of the Shares have
been duly authorized and are validly issued, fully paid and non-assessable and
the Rights are validly issued subject to the terms of the Rights Agreement.]
[/3/The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered by
FPL Group against payment therefor in accordance with the provisions of the
Purchase Contract Agreement, the Purchase Contracts and the Pledge Agreement,
will be fully paid and non-assessable and the related Rights, if any, when
issued in accordance with the provisions of the Rights Agreement will be validly
issued subject to the terms of the Rights Agreement.] [/1/,/3/The shareholders
of FPL Group have no preemptive rights, pursuant to the FPL Group Charter or the
FPL Group Bylaws to subscribe for any of the Common Stock] [/3/issuable pursuant
to the Purchase Contracts or any of the Corporate Units.]
7. Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇
and ▇▇▇-▇▇▇▇▇▇-▇▇ and Registration Statement Nos. 333-______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05 (collectively,
the "Registration Statement"), at the Effective Date, and the Prospectus, at the
424 Date (except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
V-2
express no opinion, and except for those parts of the Registration Statement
that constitute the Statements of Eligibility on Form T-1, as to which we
express no opinion), complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable instructions,
rules and regulations of the Commission thereunder. The Incorporated Documents
(except as to the financial statements and other financial or statistical data
contained or incorporated by reference therein, as to which we express no
opinion), at the time they were filed with the Commission, complied as to form
in all material respects with the applicable requirements of the Exchange Act
and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement was declared, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
8. The statements made in the Prospectus under the headings
[/1/"Description of Common Stock"] [/2/"Description of Offered Debt Securities",
"Description of the Guarantee"] [/3/"Descripton of Common Stock", "Description
of Offered Debt Securities", "Description of the Guarantee", "Description of
Stock Purchase Contract and Stock Purchase Units"] [and _______________],
insofar as they purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
9. [/2/The Indenture and the Guarantee Agreement are duly qualified under
the Trust Indenture Act of 1939, as amended.] [/3/The Indenture, the Guarantee
Agreement and the Purchase Contract Agreement are duly qualified under the Trust
Indenture Act of 1939, as amended.]
10. The Agreement has been duly and validly authorized, executed and
delivered by [/2/,/3/each of] FPL Group [/2/,/3/and FPL Group Capital].
In rendering the foregoing opinion, we have assumed that the certificates
representing [/1/,/3/the Shares] [/3/and the Corporate Units] [/2/the
Securities] will conform to specimens examined by us, [/3/that the certificates
representing the Shares] [/1/,/3/will be duly countersigned by the transfer
agent and duly registered by the registrar thereof and] [/2/,/3/that the
Debentures will be duly authenticated by the Trustee under the Indenture and]
[/3/ and the Corporate Units will be duly authenticated by the Purchase Contract
Agent under the Purchase Contract Agreement and] will be delivered against
payment of the purchase price as provided in the Agreement and that the
signatures on all documents examined by us are genuine, assumptions which we
have not independently verified. [/3/In addition, we have assumed for purposes
of the opinion related to the Rights expressed herein that, prior to the
issuance of any Common Stock pursuant to the terms of the Purchase Contracts,
there shall have been no amendment or termination of the Rights Agreement, or
other action, affecting the provisions for distribution of Rights upon issuance
of Common Stock as in effect on the date hereof.] [Insert additional
assumptions, if applicable] We express no opinion or belief as to the
incorporation of FPL Group or FPL Group Capital, titles to property or
franchises.
The opinion set forth in Paragraph [6] herein is subject to the same
limitations and qualifications contained in the opinion of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇
LLP referred to below.
V-3
In passing on the form of the Registration Statement and the form of the
Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by FPL Group [/2/,/3/and FPL Group Capital]
and take no responsibility therefor, except insofar as such statements relate to
us and as set forth in paragraph [8] above. Other than with respect to the
opinion expressed in Paragraph [8] hereof, we have not ourselves checked the
accuracy or completeness of, or otherwise verified, the information furnished
with respect to the matters in the Registration Statement or the Prospectus. We
have generally reviewed and discussed such information with certain officers and
employees of FPL Group [/2/,/3/and FPL Group Capital], certain of [/1/its]
[/2/,/3/their] legal counsel, [/1/its] [/2/,/3/their] independent public
accountants and your representatives. On the basis of such review and
discussion, but without independent check or verification except as stated,
nothing has come to our attention that would lead us to believe (except as to
the financial statements and other financial or statistical data contained or
incorporated by reference therein, as to which we express no belief, and except
for those parts of the Registration Statement that constitute the Statements of
Eligibility on Form T-1, as to which we express no belief), that the
Registration Statement, at the Effective Date, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements contained therein not
misleading or (except as aforesaid) that the Prospectus at the 424 Date
included, or at the date hereof includes, any untrue statement of a material
fact or the Prospectus at the 424 Date omitted, or at the date hereof omits, to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
This opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and, to the extent set forth herein, the
law of the State of Florida. We have reviewed the opinion of even date herewith
addressed to you of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for FPL Group [/2/,/3/and
FPL Group Capital], required by Section [8(c)(i)] of the Agreement, and we
believe such opinion to be satisfactory. We have, with your consent, relied upon
such opinion as to the matters covered in such opinion relating to the laws of
the State of Florida. We have also reviewed the opinion of even date herewith
addressed to you by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel to FPL Group [/2/,/3/and
FPL Group Capital], required by Section [8(c)(i)] of the Agreement, and we
believe such opinion to be satisfactory.
This opinion is given to you solely for your use as the Underwriters in
connection with the Agreement and the transactions contemplated thereunder and
may not be relied upon by any other person or for any other purpose without our
express written consent. This opinion is expressed as of the date hereof, and we
do not assume any obligation to update or supplement it to reflect any fact or
circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
HUNTON & ▇▇▇▇▇▇▇▇ LLP
V-4