EXHIBIT 1(C)
FPL Group, Inc.
[FPL Group Capital Inc]
Preferred Stock
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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 serial preferred stock, $.01
par value, with the terms and in the amount specified in Schedule I hereto (the
"Preferred Stock" or the "Shares").] [/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 shares of
FPL Group Capital's preferred stock, $[__] par value, with the terms and in the
amount specified in Schedule I hereto (the "Preferred Stock" or the "Shares").
The Preferred Stock will be guaranteed by FPL Group pursuant to and in
accordance with the terms of the Guarantee Agreement, dated as of _________,
200_, between FPL Group and the holders of the Preferred Stock (the "Guarantee
Agreement").] [/1/FPL Group hereby confirms its agreement with the several
Underwriters (as defined below) as set forth herein.] [/2/Each of FPL Group and
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 [5] 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
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1 For use in connection with Preferred Stock of FPL Group.
2 For use in connection with Preferred Stock of FPL Group Capital.
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. [/2/Representations and Warranties of FPL Group Capital. FPL Group
Capital represents and warrants to the several Underwriters that:
(a) FPL Group Capital has 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 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 unsecured debt
securities ("Debt Securities"), (ii) FPL Group's shares of common stock,
$.01 par value, including the preferred share purchase rights, if any,
attached thereto (the "Common Stock"), (iii) shares of FPL Group's
preferred stock, $.01 par value ("FPL Group Preferred Stock"), (iv) the
Preferred Stock, (v) contracts to purchase Common Stock or other agreements
or instruments requiring FPL Group to issue Common Stock (collectively,
"Stock Purchase Contracts"), (vi) 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"), (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 Trust I, FPL Group Capital Trust II and FPL
Group Capital Trust III ("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 $1,400,000,000) and (b) FPL Group's
guarantees (the "Guarantees") related to Debt Securities, FPL Group Capital
Junior Subordinated Debentures, Preferred Stock and Preferred Trust
Securities. [None] [$__________] 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-_______, 333-______-01, 333-_______-02, 333-_______-03, 333-_______-04
and 333-_______-05, as amended or supplemented to such date, including all
documents incorporated by reference therein as of such date pursuant to
Item 1/2/ 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
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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 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 Shares 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 Shares or (ii) when referring to the Prospectus relating to
a particular offering of the Shares, Shares other than the Shares 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 Shares 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 Shares, 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
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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 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. The execution and delivery of the Shares 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 (i) those consents, approvals,
authorizations, registrations or qualifications as have already been
obtained, and (ii) the filing of Articles of Amendment to the FPL Group
Capital Charter relating to the Shares with the appropriate office of the
Department of State, State of Florida which shall be filed by FPL Group
Capital prior to the Closing Date.
(d) 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 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
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corporation or other entity necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged.
(g) The Preferred Stock has been validly authorized and, when issued
and delivered by FPL Group Capital against payment therefor in accordance
with the provisions of this agreement, will be fully paid and
non-assessable.
(h) FPL Group Capital is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended ("1940 Act").]
3. 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/the Commission] Registration Statement Nos. 333-_______,
333-______-01, 333-_______-02, 333-_______-03, 333-_______-04 and
333-_______-05 for the registration under the Securities Act [/1/of 1933,
as amended (the "Securities Act"),] of (a) $2,800,000,000 aggregate amount
of (i) FPL Group Capital's [/1/unsecured debt securities ("Debt
Securities")] [/2/Debt Securities], (ii) [/1/FPL Group's shares of common
stock, $.01 par value, including the preferred share purchase rights, if
any, attached thereto (the "Common Stock")] [/2/Common Stock], (iii)
[/1/the Preferred Stock] [/2/shares of FPL Group's serial preferred stock,
$.01 par value ("FPL Group Preferred Stock")], (iv) [/2/the Preferred
Stock] [/1/shares of FPL Group Capital's preferred stock, $[__] par value
("FPL Group Capital Preferred Stock")], (v) [/1/contracts to purchase
Common Stock or other agreements or instruments requiring FPL Group to
issue Common Stock (collectively, "Stock Purchase Contracts")] [/2/Stock
Purchase Contracts], (vi) [/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/Stock Purchase Units],
(vii) [/1/FPL Group Capital's junior subordinated debentures ("FPL Group
Capital Junior Subordinated Debentures")] [/2/FPL Group Capital Junior
Subordinated Debentures], (viii) [/1/FPL Group's junior subordinated
debentures ("FPL Group Junior Subordinated Debentures")] [/2/FPL Group
Junior Subordinated Debentures], and (ix) [/1/preferred trust securities of
the FPL Group Capital Trust II, FPL Group Capital Trust III, FPL Group
Trust I and FPL Group Trust II ("Preferred Trust Securities")]
[/2/Preferred Trust Securities], (provided however, that the aggregate
value 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 and FPL Group Capital Trust III
included in the registration statement may not exceed $1,400,000,000) and
(b) [/1/FPL Group's guarantees (the "Guarantees") related to Debt
Securities, FPL Group Capital Junior Subordinated Debentures, Preferred
Stock and Preferred Trust Securities] [/2/the Guarantees]. [None]
[$__________] 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
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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-_______, 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 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 Shares 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 Shares or (ii) when referring to the Prospectus relating to
a particular offering of the Shares, Shares other than the Shares 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 Shares 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 Shares, 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/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")] [2424 Date] and at the
Closing Date, and the Registration Statement [/2/and the Guarantee
Agreement] at the Closing Date, will fully comply, in all material respects
with the applicable provisions of the Securities Act and 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
6
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/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/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
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
7
Group Charter"), by-laws and applicable law[/2/, and the Guarantee
Agreement related to the FPL Group Capital Preferred Stock 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
Preferred Stock 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/,] the
fulfillment of the terms hereof on the part of FPL Group to be fulfilled
[/2/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 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.
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(i) [/2/The Guarantee Agreement (i) has been duly authorized by FPL
Group by all necessary corporate action and, when executed and delivered by
FPL Group, will be 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) [/1/The Preferred 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.]
(k) FPL Group is not an "investment company" within the meaning of the
[/1/Investment Company Act of 1940, as amended ("]1940 Act[/1/")].
4. 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/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
[/1/FPL Group] [/2/FPL Group Capital] the respective number of Shares set forth
opposite their respective names in Schedule II hereto at the purchase price[s]
for those Shares set forth in Schedule I hereto.
The Underwriters agree to make a bona fide public offering of the Shares.
The Underwriters have advised [/1/FPL Group] [/2/FPL Group Capital] that the
Shares will be offered to the public at $___ per share and to certain dealers
selected by the Representatives at a price which represents a concession not in
excess of $____ per share under the public offering price.
5. Time, Date and Place of Closing, Default of Underwriter. Delivery of the
Shares and payment therefor by wire transfer in federal funds 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 FPL Group [/2/, FPL Group
Capital] and the Representatives. The time and date of such delivery and payment
are herein called the "Closing Date."
The Shares 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 Shares shall
be made through the facilities of DTC unless the Representatives and [/1/FPL
Group] [/2/FPL Group Capital] shall otherwise agree. For the purpose of
expediting the checking of the Shares by the Representatives on behalf of the
Underwriters, [/1/FPL Group] [/2/FPL Group Capital] agrees to make such Shares
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/FPL Group] [/2/ FPL
Group Capital] and the Representatives.
If any Underwriter shall fail to purchase and pay for the number of the
Shares which such Underwriter has agreed to purchase and pay for hereunder
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(otherwise than by reason of any failure on the part of FPL Group [/2/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 number of the Shares set forth opposite their
respective names in Schedule II hereto) the number of the Shares which such
defaulting Underwriter or Underwriters failed to purchase and pay for, up to a
number thereof equal to, in the case of each such remaining Underwriter, ten
percent (10%) of the aggregate number of the Shares 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 number of the Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase, or (ii) substitute another
Underwriter or Underwriters, satisfactory to FPL Group [/2/and FPL Group
Capital], to purchase and pay for, the remaining number of the Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase. If any of
the Shares still remain unpurchased, then [/1/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 Shares on the terms herein set forth. In the event that, within
the respective prescribed periods, (i) the non-defaulting Underwriters notify
[/1/FPL Group] [/2/FPL Group Capital] that they have arranged for the purchase
of such Shares or (ii) [/1/FPL Group] [/2/FPL Group Capital] notifies the
non-defaulting Underwriters that it has arranged for the purchase of such
Shares, the non-defaulting Underwriters or [/1/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 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/FPL Group] [/2/FPL Group Capital] has arranged for the purchase of such
Shares by another party or parties as above provided, then this agreement shall
terminate without any liability on the part of FPL Group [/2/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 Shares which such Underwriter has agreed
to purchase as provided in Section [4] hereof), except as otherwise provided in
Section [9] and subsections (c) and (e) of Section [6] hereof.
6. Covenants of FPL Group [/2/and FPL Group Capital]. FPL Group [/2/and FPL
Group Capital] [/1/agrees] [/2/agree] with the several Underwriters that:
(a) FPL Group [/2/and FPL Group Capital] will promptly file the
Prospectus with the Commission pursuant to Rule 424 under the Securities
Act.
(b) [/1/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/FPL
Group] [/2/FPL Group Capital] to be in the form as originally filed,
10
including all Incorporated Documents and exhibits, except those
incorporated by reference, which relate to the Shares, 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/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/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 Shares as provided in Section [5] 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]
[/2/,] the Prospectus [/2/and the Guarantee Agreement]. [/1/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 Shares. [/1/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 [7], [8] [or] [/1/0] hereof, [/1/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/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/Neither]
FPL Group [/2/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.
(d) During a period of nine months after the date of this agreement,
if any event relating to or affecting FPL Group [/2/or FPL Group Capital]
shall occur which, in the opinion of FPL Group [/2/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/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/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.
11
(e) [/1/FPL Group] [/2/FPL Group Capital] will furnish such proper
information as may be lawfully required and otherwise cooperate in
qualifying the Shares 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/neither]
FPL Group [/2/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/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 Shares) 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/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 Shares
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.
(h) [/1/FPL Group] [/2/FPL Group Capital] will use its commercially
reasonable best efforts to deliver, in appropriate form for filing, to the
Department of State of Florida on or before the Closing Date the articles
of amendment required by Section 607.0602, Florida Statues, which are
effective to establish and designate the Shares and determine their
relative rights, preferences and limitations, and will use its commercially
reasonable best efforts to have such amendment accepted for filing by such
Department of State on or before the Closing Date.
7. Conditions of Underwriters' Obligations to Purchase and Pay for the
Shares. The several obligations of the Underwriters to purchase and pay for the
Shares shall be subject to the performance by FPL Group [/2/and FPL Group
Capital] of [/1/its] [/2/their] obligations to be performed hereunder on or
prior to the Closing Date and to the following conditions:
(a) The [/2/respective] representations and warranties made by FPL
Group [/2/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
Shares, a certificate from [/2/each of] FPL Group [/2/and FPL Group
Capital] dated the Closing Date and signed by an officer of FPL Group
[/2/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
12
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 Shares, a
certificate from [/2/each of] FPL Group [/2/and FPL Group Capital] dated
the Closing Date and signed by an officer of FPL Group [/2/and FPL Group
Capital, as the case may be,] to the effect that, to the best of [/2/their]
[/1/his] 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/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/and FPL Group Capital],
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, co-counsel to FPL Group [/2/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/, FPL Group Capital]
and the Representatives, with the approval of Counsel for the Underwriters,
and (ii) if the Prospectus relating to the Shares 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,
incorporated by reference in the Prospectus, a reading of the latest
available interim unaudited condensed consolidated financial statements of
FPL Group 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
13
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/(a) FPL Group Capital and its
subsidiaries taken as a whole or (b)] FPL Group and its subsidiaries taken
as a whole, except [/2/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/(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 that is
material to FPL Group and its subsidiaries taken as a whole, [/2/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/each of FPL Group Capital
and] FPL Group signed by an officer of [/2/FPL Group Capital or] FPL
Group[/2/, as the case may be].
(f) All legal proceedings to be taken in connection with the issuance
and sale of the Shares shall have been satisfactory in form and substance
to Counsel for the Underwriters.
(g) [The Shares shall have been approved for listing on The New York
Stock Exchange, Inc. ("NYSE") upon official notice of issuance.]
14
In case any of the conditions specified above in this Section [7] shall not
have been fulfilled, this agreement may be terminated by the Representatives
upon mailing or delivering written notice thereof to FPL Group [/2/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
[6] hereof.
8. Condition of FPL Group's [/2/and FPL Group Capital's] Obligations. The
[/1/obligation] [/2/obligations] of FPL Group [/2/and FPL Group Capital] to
deliver the Shares 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 [8] shall not have
been fulfilled, this agreement may be terminated by FPL Group [/2/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 [6] hereof.
9. Indemnification.
(a) FPL Group [/2/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
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 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 [9] 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/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
15
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 [9] 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 Shares 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 Shares 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 Shares 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 Shares. The
indemnity agreement of FPL Group [/2/and FPL Group Capital] contained in
this subsection (a) of Section [9] and the representations and warranties
of FPL Group [/2/and FPL Group Capital] contained in [/1/Section 2]
[/2/Sections [2] and [3]] hereof, [/2/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 Shares [of each series]. The
Underwriters agree promptly to notify [/2/each of] FPL Group [/2/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 or controlling person in connection with the issuance and sale of
the Shares.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless [/2/each of] FPL Group [/2/and FPL Group Capital],
[/1/its] [/2/their respective] officers and directors, and each person who
controls FPL Group [/2/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/or FPL
16
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/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/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 [9]
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of FPL Group [/2/,FPL Group Capital] or
any of [/1/its] [/2/their respective] officers or directors or any such
other Underwriter or any such controlling person, and shall survive the
delivery of the Shares [of each series]. FPL Group [/2/and FPL Group
Capital agree] [/1/agrees] promptly to notify the Representatives of the
commencement of any litigation or proceedings against FPL Group [/2/, FPL
Group Capital] (or any controlling person [/2/of either] thereof) or any of
[/1/its] [/2/their respective] officers or directors in connection with the
issuance and sale of the Shares.
(c) FPL Group [/2/, 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 [9], 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
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/, FPL Group Capital]
and each of the several Underwriters each agree that without the prior
17
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 [9], 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/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/and FPL Group Capital] on the one hand
and the Underwriters on the other hand from the offering of the Shares
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/and FPL Group Capital] 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/, 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 Shares
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 Shares is to the
total amount of Shares set forth in Schedule II hereto.
10. Termination. This agreement may be terminated by the Representatives by
delivering written notice thereof to [/1/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 the NYSE or there shall have been established by the NYSE or
18
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/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 Shares.
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/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/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
Shares to be purchased hereunder. Any termination of this agreement pursuant to
this Section [10] shall be without liability of any party to any other party
except as otherwise provided in subsections (c) and (e) of Section [6] hereof.
11. Miscellaneous. The validity and interpretation of this agreement shall
be governed by the laws of the State of New York without regard to conflicts of
law principles thereunder. This agreement shall inure to the benefit of, and be
binding upon, FPL Group [/2/, FPL Group Capital], the several Underwriters and,
with respect to the provisions of Section [9] hereof, each officer, director or
controlling person referred to in said Section [9], 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 Shares from any of the several Underwriters.
12. 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/or FPL Group Capital], shall be mailed or delivered to it at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
19
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/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.
20
SCHEDULE I
Underwriting Agreement dated __________________
Registration Statement Nos. 333-_______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04 and 333-_______-05
Representatives and Addresses:
Shares:
Designation:
Number of Shares
Dividend Rate:
Underwriting [Discount] [Compensation]:
Public Offering Price:
Purchase Price:
Closing Date, Time and Location: _________, 200_ at the offices of
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at ____
SCHEDULE II
Number of
Underwriter Shares
-----------
[Name of Underwriter]
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 ___ Preferred Stock, $.01 par value ("Preferred Stock" or 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 __________ shares of its ___ Preferred Stock,
$[__] par value ("Preferred Stock" or the "Shares"), which Shares are guaranteed
(the "Guarantee") by FPL Group pursuant to that Guarantee Agreement dated
__________, 200_ from FPL Group to the holders of Preferred Stock (the
"Guarantee Agreement")] and (b) in connection with the sale of the Shares to you
in accordance with the Underwriting Agreement, dated as of __________, 200_ (the
"Agreement"), [/1/between you and FPL Group] [,/2/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-_______, 333-______-01, 333-_______-02, 333-_______-03,
333-_______-04 and 333-_______-05 effective on ___________ which registration
statement was filed by FPL Group, FPL Group Capital, FPL Group Trust I, FPL
Group Capital Trust II and FPL Group Capital Trust III with the Commission under
the Securities Act of 1933, as amended ("Securities Act") (references herein to
the term "Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-_______, 333-______-01, 333-_______-02, 333-_______-03,
333-_______-04 and 333-_______-05, 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")); /2/ the 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 Shares, 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 Shares filed pursuant to Rule 424, and as further
amended and supplemented to such date, including the Incorporated Documents);
[2(3) the Guarantee Agreement;] (4) the corporate proceedings of FPL Group with
respect to the Registration Statement [/2/and the Guarantee]; (5) [/2/the
corporate proceedings of FPL Group Capital with respect to the Registration
Statement]; (6) FPL Group's Restated Articles of Incorporation as amended to the
date hereof (the "FPL Group Charter"), the Articles of Amendment to the Charter
with respect to the Shares, as filed with the Department of State of the State
of Florida, and Bylaws as amended to the date hereof (the "FPL Group Bylaws");
(7) the Articles of Amendment to the [FPL Group][FPC Group Capital] Charter with
respect to the Shares as filed with the Department of State [/2/(8) FPL Group
Capital's Articles of Incorporation as amended to the date hereof (the "FPL
Group Capital Charter;" and each of the FPL Group Charter and the FPL Group
Capital Charter, a "Charter") and Bylaws as amended to the date hereof (the "FPL
Group Capital Bylaws")]; and (8) 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.
FPL Group [/2/and FPL Group Capital each] is a validly organized and
existing corporation and is in good standing under the laws of the State of
Florida, and [/2/each] has valid franchises, licenses and permits adequate for
the conduct of its [2respective] businesses.
II.
FPL Group [/2/and FPL Group Capital each] 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/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.]
IV.
The Shares have been duly authorized and are validly issued, fully paid and
non-assessable. The shareholders of [/1/FPL Group] [/2/FPL Group Capital] have
no preemptive rights pursuant to Florida law, the FPL Group [/2/Capital] Charter
or the FPL Group [/2/Capital] Bylaws, or, to our knowledge, any agreement or
instrument the terms of which are known to us to which FPL Group [/2/Capital] is
now a party, to subscribe for any of the Shares.
V.
To our knowledge after due inquiry, [/2/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 &
III-2
Light Company and FPL Group Capital free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
VI.
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.
VII.
The consummation of the transactions contemplated in the Agreement and the
fulfillment of the terms contained in the Agreement [/2/and, with respect to the
Shares, 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, as the case may be, the FPL Group
Charter or the FPL Group Bylaws [/2/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/or FPL Group Capital], or any of [/1/its] [/2/their respective] subsidiaries
[/2/, 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/or FPL Group Capital], [/2/each] together
with its [/2/respective] subsidiaries taken as a whole [/2/, as the case may
be].
VIII.
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 Shares [/2/as guaranteed by
the Guarantee Agreement].
IX.
The statements made in the Prospectus under the headings "Description of
__________"], insofar as they purport to constitute summaries of the terms of
III-3
the documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
X.
[The Shares have been listed, upon official notice of issuance, on The New
York Stock Exchange, Inc.]
XI.
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/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/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/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.
XII.
The Agreement has been duly and validly authorized, executed and delivered
by [/2/each of] FPL Group [/2/and FPL Group Capital].
In rendering the foregoing opinion, we have assumed that the certificates
representing the Shares will conform to specimens examined by us, that the
certificates representing the Shares will be duly countersigned by the transfer
agent and duly registered by the registrar thereof 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. [Insert additional assumptions, if applicable]
Other than with respect to the opinion expressed in Paragraph [IX] hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to 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/and FPL Group
Capital], certain of [/1/its] [/2/their] other legal counsel, [/1/its]
[/2/their] independent public accountants and your representatives.
Additionally, as counsel to FPL Group [/2/and FPL Group Capital], we have
responsibility for certain of [/1/its] [/2/their] legal 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
III-4
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, 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-5
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 ___ Preferred Stock, $.01 par value ("Preferred Stock" or 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 __________ shares of its ___ Preferred
Stock, $[__] par value ("Preferred Stock" or the "Shares"), which Shares are
guaranteed (the "Guarantee") by FPL Group pursuant to that Guarantee Agreement
dated __________, 200_ from FPL Group to the holders of Preferred Stock (the
"Guarantee Agreement")] and (b) in connection with the sale of the Shares to you
in accordance with the Underwriting Agreement, dated as of __________, 200_ (the
"Agreement"), [/1/between you and FPL Group] [,/2/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-_______, 333-______-01, 333-_______-02, 333-_______-03,
333-_______-04 and 333-_______-05 effective on ___________ which registration
statement was filed by FPL Group, FPL Group Capital, FPL Group Trust I, FPL
Group Capital Trust II and FPL Group Capital Trust III with the Commission under
the Securities Act of 1933, as amended ("Securities Act") (references herein to
the term "Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-_______, 333-______-01, 333-_______-02, 333-_______-03,
333-_______-04 and 333-_______-05, 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")); /2/ the 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 Shares, 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 Shares filed pursuant to Rule 424, and as further
amended and supplemented to such date, including the Incorporated Documents);
[/2/(3) the Guarantee Agreement;] (4) the corporate proceedings of FPL Group
with respect to the Registration Statement [/2/and the Guarantee]; (5) [/2/the
corporate proceedings of FPL Group Capital with respect to the Registration
Statement]; (6) FPL Group's Restated Articles of Incorporation as amended to the
date hereof (the "FPL Group Charter"), the Articles of Amendment to the Charter
with respect to the Shares, as filed with the Department of State of the State
of Florida, and Bylaws as amended to the date hereof (the "FPL Group Bylaws");
(7) the Articles of Amendment to the [FPL Group][FPC Group Capital] Charter with
respect to the Shares as filed with the Department of State [/2/(8) FPL Group
Capital's Articles of Incorporation as amended to the date hereof (the "FPL
Group Capital Charter;" and each of the FPL Group Charter and the FPL Group
Capital Charter, a "Charter") and Bylaws as amended to the date hereof (the "FPL
Group Capital Bylaws")]; and (8) 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/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.]
II.
The Shares have been duly authorized and are validly issued, fully paid and
non-assessable. The shareholders of FPL Group have no preemptive rights pursuant
to Florida law, the FPL Group [/2/Capital] Charter or the FPL Group [/2/Capital]
Bylaws, or, to our knowledge, any agreement or instrument the terms of which are
known to us to which FPL Group [/2/Capital] is now a party, to subscribe for any
of the Shares.
III.
To our knowledge after due inquiry, [/2/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.
IV.
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
IV-2
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.
V.
The consummation of the transactions contemplated in the Agreement and the
fulfillment of the terms contained in the Agreement [/2/and, with respect to the
Shares, 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, as the case may be, the FPL Group
Charter or the FPL Group Bylaws [/2/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/or FPL Group Capital], or any of [/1/its] [/2/their respective] subsidiaries
[/2/, 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/or FPL Group Capital], [/2/each] together
with its [/2/respective] subsidiaries taken as a whole [/2/, as the case may
be].
VI.
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 Shares [/2/as guaranteed by
the Guarantee Agreement].
VII.
The statements made in the Prospectus under the headings "Description of
__________"], 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.
VIII.
[The Shares have been listed, upon official notice of issuance, on The New
York Stock Exchange, Inc.]
IX.
The Agreement has been duly and validly authorized, executed and delivered
by [/2/each of] FPL Group [/2/and FPL Group Capital].
IV-3
In rendering the foregoing opinion, we have assumed that the certificates
representing the Shares will conform to specimens examined by us, will be duly
countersigned by the transfer agent and duly registered by the registrar thereof
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. [Insert additional
assumptions, if applicable]
Other than with respect to the opinion expressed in Paragraph [VII] hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to 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/and FPL Group
Capital], certain of [/1/its] [/2/their] other legal counsel, [/1/its]
[/2/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, 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-4
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
preferred stock, $[__] par value ("Preferred Stock or 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
__________ shares of its preferred stock, $[__] par value ("Preferred Stock or
the "Shares"), which Shares are absolutely, irrevocably and unconditionally
guaranteed (the "Guarantee") by FPL Group ("FPL Group") pursuant to that
Guarantee Agreement dated as of __________, 200_ from FPL Group to the holders
of the Preferred Stock (the "Guarantee Agreement")] pursuant to the Underwriting
Agreement, dated as of ______________ (the "Agreement"), [/1/between you and FPL
Group] [/2/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.
Based on the foregoing, we are of the opinion that:
1. [/2/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.]
2. [/1/The Shares have been duly authorized and are validly issued, fully
paid and non-assessable. 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. 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 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.
4. The statements made in the Prospectus under the headings ["Description
of _______________"], 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.
5. [/2/The Guarantee Agreement is duly qualified under the Trust Indenture
Act of 1939, as amended.]
6. The Agreement has been duly and validly authorized, executed and
delivered by [/2/each of] FPL Group [/2/and FPL Group Capital].
In rendering the foregoing opinion, we have assumed that the certificates
representing the Shares will conform to specimens examined by us, will be duly
countersigned by the transfer agent and duly registered by the registrar thereof
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. [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.
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/and FPL Group Capital] and
take no responsibility therefor, except insofar as such statements relate to us
and as set forth in paragraph [4] above. Other than with respect to the opinion
expressed in Paragraph [4] 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/and FPL Group Capital], certain of [/1/its]
[/2/their] legal counsel, [/1/its] [/2/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
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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/and FPL
Group Capital], required by Section [7(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/and FPL
Group Capital], required by Section [7(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
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