Exhibit 1(a)
DEALER MANAGERS AGREEMENT
October 9, 1995
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Florida Power & Light Company, a Florida corporation ("FPL"),
proposes to offer its 8.75% Quarterly Income Debt Securities
(Subordinated Deferrable Interest Debentures, Due 2025 (the
"QUIDS") in exchange for its 5,000,000 outstanding shares of
$2.00 No Par Preferred Stock, Series A (Involuntary Liquidation
Value $25 Per Share) (the "Preferred Stock"), on the terms and
subject to the conditions set forth in the Prospectus attached
hereto as Exhibit A (the "Prospectus") and set forth in the
Letter of Transmittal and related correspondence attached hereto
as Exhibit B (collectively, the "Letter of Transmittal"), both of
which we have caused to be drafted and furnished to you in
connection with such offer (the "Exchange Offer"). The
Prospectus and the Letter of Transmittal are collectively
hereinafter referred to as the "Offer Materials."
The QUIDS will be a series of debt securities issued by FPL under
its Indenture, dated as of November 1, 1995, to The Chase
Manhattan Bank (National Association), as Trustee, as it will be
supplemented by a resolution of the Finance Committee of the
Board of Directors of FPL and an Officer's certificate, each
relating to the QUIDS, in substantially the form heretofore
delivered to the Dealer Managers (as hereinafter defined). The
Indenture as it will be so supplemented is hereinafter called the
"Indenture."
FPL has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-4, including a
prospectus ("registration statement No. 33-59429"), for the
registration of $125,000,000 aggregate principal amount of its
QUIDS under the Securities Act of 1933, as amended (the
"Securities Act"), which registration statement has been declared
effective by the Commission. References herein to the term
"Registration Statement" as of any given date shall mean
registration statement No. 33-59429, as amended or supplemented
to such date, including all documents incorporated by reference
therein as of such date pursuant to Item 11 of Form S-4
("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall mean the prospectus
forming a part of registration statement No. 33-59429, as amended
or supplemented as of such date, including all Incorporated
Documents. References herein to the term "Effective Date" shall
be deemed to refer to the time and date that registration
statement No. 33-59429 was declared effective by the Commission.
Prior to the termination of the Exchange Offer, FPL will not file
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus without prior notice to the Dealer
Managers and to Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, who are
acting as counsel on behalf of the Dealer Managers ("Counsel for
the Dealer Managers"), or any such amendment or supplement to
which the Dealer Managers shall reasonably object in writing, or
which shall be unsatisfactory to Counsel for the Dealer Managers.
FPL has also prepared and filed, or will also prepare and file,
with the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the applicable instructions,
rules and regulations of the Commission thereunder, a Statement
on Schedule 13E-4 with respect to the Exchange Offer (as such
Statement may be amended from time to time, and including
exhibits thereto and any documents incorporated by reference
therein, the "Schedule 13E-4").
FPL has furnished, or will promptly furnish, to each of you a
signed copy of each of the Registration Statement and the
Schedule 13E-4, all amendments or supplements thereto and any
other filings with the Commission in connection with the Exchange
Offer, whether filed before or after the Registration Statement
became effective, and copies of all exhibits and documents filed
therewith.
1. Appointment of Dealer Managers. Subject to the terms and
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conditions hereof, FPL hereby appoints ▇▇▇▇▇▇▇, Sachs & Co.,
▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Dealer
Managers," or each, a "Dealer Manager") to act on its behalf as
the dealer managers, and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ Brothers
Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. agree to act as the dealer managers,
in connection with the Exchange Offer.
2. Duties as Dealer Managers. The Dealer Managers will each
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perform those services as dealer manager, in connection with the
Exchange Offer, as are customarily performed by investment
banking concerns in connection with offers of like nature,
including, but not limited to, soliciting tenders of Preferred
Stock pursuant to the Exchange Offer and communicating generally,
and responding to requests for information and material,
regarding the Exchange Offer and the QUIDS with brokers, dealers,
commercial banks and trust companies and other persons including
the holders of the Preferred Stock. In addition, each Dealer
Manager shall act as an independent contractor and will not be
deemed to act as agent of FPL, and FPL shall not be deemed to act
as the agent of any Dealer Manager. In addition, in so
soliciting, no broker, dealer, commercial bank or trust company
shall be deemed to act as the agent of any Dealer Manager or as
agent of FPL, and neither the Dealer Managers nor FPL shall be
deemed to act as the agent of any broker, dealer, commercial bank
or trust company. FPL will cooperate with the Dealer Managers
and use its reasonable best efforts to provide the Dealer
Managers with such information as the Dealer Managers shall
reasonably request in connection with effectuating their duties
hereunder.
3. Offer Materials.
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(a) The Offer Materials will be prepared and approved by FPL.
FPL will cause all copies of the Offer Materials, and all
amendments and supplements thereto, filed with the Commission to
be distributed to holders of record of shares of Preferred Stock
as may be required by the Securities Act and the Exchange Act and
the respective instructions, rules and regulations of the
Commission thereunder. Each Dealer Manager is authorized to use
the Offer Materials in connection with the solicitation of
holders of Preferred Stock, and FPL agrees to furnish each Dealer
Manager with as many copies of the Offer Materials, and all
amendments or supplements thereto, as such Dealer Manager may
reasonably request for use by such Dealer Manager in connection
with the Exchange Offer during the period of the Exchange Offer.
Each Dealer Manager agrees not to provide the holders of
Preferred Stock or any other person any written information
regarding the Exchange Offer other than the information contained
in the Offer Materials. FPL will not file, use or publish any
material in connection with the Exchange Offer, or refer to any
Dealer Manager in any such material, without prior consultation
with that Dealer Manager.
(b) If, prior to the Closing Date (as defined below), any
event occurs as a result of which the Prospectus or the Schedule
13E-4 would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Securities Act or amend the
Schedule 13E-4 to comply with the Exchange Act, then FPL will
notify the Dealer Managers promptly to suspend solicitation of
exchanges of Preferred Stock and each Dealer Manager shall
suspend its solicitations of exchanges of Preferred Stock; and if
FPL shall decide to amend or supplement the Registration
Statement, the Prospectus or the Schedule 13E-4, it will promptly
advise the Dealer Managers by telephone (with confirmation in
writing) and will promptly prepare and file with the Commission
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Upon
the Dealer Managers' receipt of such amendment or supplement and
advice from FPL that solicitations may be resumed, the Dealer
Managers will resume solicitations of exchanges of Preferred
Stock.
(c) FPL will promptly advise the Dealer Managers of the
issuance of any stop order under the Securities Act with respect
to the Registration Statement or the institution of any
proceedings therefor of which FPL shall have received notice
prior to the Closing Date. FPL will use its best efforts to
prevent the issuance of any such stop order and to secure the
prompt removal thereof, if issued.
4. Representations, Warranties and Covenants of FPL. FPL
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represents and warrants and agrees that:
(a) The Registration Statement and the Prospectus at the
Effective Date fully complied, and the Prospectus, the
Registration Statement, and the Indenture at the date the
Exchange Offer is consummated (the "Closing Date") and the
Schedule 13E-4, at the date it is filed with the Commission and
at the Closing Date, will fully comply, in all material respects
with the applicable provisions of the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), and, in each case, the applicable instructions,
rules and regulations of the Commission with respect thereto; at
the Effective Date, the Registration Statement and the Offer
Materials taken together as a whole, did not, and at the date it
is filed with the Commission, the Schedule 13E-4 will not, and at
the Closing Date, the Offer Materials taken together as a whole,
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; 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 Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
provided, that the foregoing representations and warranties in
this subsection (a) shall not apply to statements or omissions
made in reliance upon and in conformity with information
furnished in writing to FPL by or on behalf of any of the Dealer
Managers for use in connection with the preparation of the
Registration Statement or the Prospectus, or to any statements in
or omissions from the Statement of Eligibility and Qualification
on Form T-1, or amendments thereto, of the Trustee under the
Indenture.
(b) The financial statements included as part of or
incorporated by reference in the Prospectus present fairly the
financial condition and operations of FPL at the respective dates
or 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 financial statements, are independent public
accountants as required by the Securities Act and the Exchange
Act and the rules and regulations of the Commission thereunder.
(c) 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
nor has any material transaction been entered into by FPL other
than changes and transactions contemplated by the Registration
Statement and Prospectus, and transactions in the ordinary course
of business. FPL has no material contingent obligation which is
not disclosed in the Registration Statement and Prospectus.
(d) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof on the part of FPL to be
fulfilled have been duly authorized by all necessary corporate
action of FPL in accordance with the provisions of its Restated
Articles of Incorporation, as amended (the "Charter"), by-laws
and applicable law, and the QUIDS when issued and delivered as
provided in the Prospectus will constitute legal, valid and
binding obligations of FPL in accordance with their terms, except
as limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally and limitations on the availability
of equitable remedies.
(e) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof and the compliance by FPL
with all the terms and provisions of the Indenture will not
result in a breach of any of the terms or provisions of, or
constitute a default under, FPL's Charter, by-laws or any
indenture, mortgage, deed of trust or other agreement or
instrument to which FPL is now a party, or violate any law or any
order, rule, decree or regulation applicable to FPL of any
Federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL 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.
(f) This Agreement has been duly authorized, executed and
delivered by FPL.
(g) FPL will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the QUIDS
for offer and sale under the blue sky laws of such jurisdictions
as, in FPL's judgment, are reasonably necessary in connection
with the Exchange Offer, provided that FPL shall not qualify as a
foreign corporation or dealer in securities, or file any consents
to service of process under the laws of any jurisdiction.
(h) FPL will make generally available to its security holders,
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) of FPL in reasonable detail covering the
12 months beginning not later than the first day of the quarter
next succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the
Securities Act.
(i) FPL will use its best efforts promptly to do and perform
all things reasonably required to effect the listing of the QUIDS
on the New York Stock Exchange (the "NYSE").
(j) FPL shall inform the Dealer Managers in advance of its
intention to offer for sale, to sell or to enter into any
agreement to sell or otherwise dispose of, any QUIDS, any
preferred stock of FPL, any other securities of FPL which are
substantially similar to QUIDS or any securities convertible into
or exchangeable for such QUIDS, preferred stock or substantially
similar securities between the date of this Agreement and the
Closing Date. If the Dealer Managers together promptly advise
FPL that, in their reasonable judgment, such offer, sale or other
disposition would adversely affect the ability of the Dealer
Managers to fulfill their obligations under this Agreement, then
FPL will refrain from making such offer, sale or other
disposition prior to the Closing Date.
5. Dealer Managers' Covenants. Each Dealer Manager hereby
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covenants that all actions taken by it in connection with the
Exchange Offer will comply in all material respects with all
applicable laws, regulations and rules of the United States
including, without limitation, the Securities Act, the Exchange
Act (including, without limitation, Rules 10b-6 and 13e-4
thereunder), and the applicable rules and regulations of the
registered national securities exchanges of which the respective
Dealer Manager is a member and of the National Association of
Securities Dealers, Inc.
6. Conditions to Obligations. Each Dealer Manager's obligation
-------------------------
to act as a dealer manager with respect to the Exchange Offer
shall at all times be subject to the conditions that:
(a) All of FPL's representations and warranties contained
herein are, and at all times during the Exchange Offer shall be,
true and correct in all material respects (except as to
representations and warranties made as of a particular date which
need be true in all material respects only as of such date), it
being understood that a Dealer Manager's performance hereunder at
a time when it knew or should have known that any such statement
is or may be untrue or incorrect in a material respect shall be
without prejudice to that Dealer Manager's right subsequently to
cease so to perform by reason of such untruth or incorrectness.
(b) FPL, at all times during the period of the Exchange Offer,
shall have performed all of its material obligations hereunder
and with respect to the Exchange Offer required to have been
performed.
(c) No stop order or restraining order shall have been issued
and no litigation shall have been commenced or threatened with
respect to the Exchange Offer or with respect to any of the
transactions in connection with or contemplated by, the Exchange
Offer, the Offer Materials, or this Agreement before any agency,
court or other governmental body of any jurisdiction which the
Dealer Manager, in good faith after consultation with FPL,
believes renders it inadvisable for the Dealer Manager to
continue to act hereunder.
(d) On the date hereof, the Dealer Managers shall have
received (i) from each of Steel, ▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇ & Priest
LLP, both counsel to FPL, an opinion, and (ii) a certificate of
FPL signed by the President, any Vice President, or the Treasurer
of FPL, in each case to the effect that, at the Effective Date,
the Registration Statement and the Offer Materials taken together
as a whole, did not, and at the date it is filed with the
Commission, the Schedule 13E-4 will not, and at the Closing Date,
the Offer Materials taken together as a whole, 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; provided that the
foregoing opinions and representations in this subsection
(d) shall not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to
FPL by or on behalf of any of the Dealer Managers for use in
connection with the preparation of the Registration Statement or
the Prospectus, or to any statements in or omissions from the
Statement of Eligibility and Qualification on Form T-1, or
amendments thereto, of the Trustee under the Indenture.
(e) On the Closing Date, the Dealer Managers shall have
received (i) from each of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇ & Priest
LLP, both counsel for FPL, a favorable opinion, which opinion
will not pass on compliance with the provisions of the blue sky
laws of any jurisdictions, in form and substance reasonably
satisfactory to Counsel for the Dealer Managers (ii) from Counsel
for the Dealer Managers, an opinion in form and substance
reasonably satisfactory to the Dealer Managers, and (iii) from
Deloitte & Touche LLP, a letter substantially in the form
attached hereto as Exhibit C.
(f) On the Closing Date, the Dealer Managers shall have
received a certificate of FPL signed by the President, any Vice
President, or the Treasurer of FPL reasonably satisfactory to the
Dealer Managers to the effect that (i) there has been no material
adverse change in the business, properties or financial condition
of FPL, except as reflected or contemplated in the Registration
Statement and Prospectus, (ii) the other representations and
warranties on the part of FPL contained in this Agreement are
true and correct (with the same force and effect as though
expressly made on and at and as of the Closing Date), (iii) FPL
has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under this Agreement on or
prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement (as so amended or
supplemented) has been issued and no proceedings for the purpose
have been initiated or threatened by the Commission.
7. Indemnification.
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(a) FPL agrees to indemnify and hold harmless each Dealer
Manager, and each person who controls it within the meaning of
Section 15 of the Securities Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to
which it or any of them may become subject under the Securities
Act, the Exchange Act or any other statute or common law, and to
reimburse any such person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) 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 (i) any untrue statement or alleged untrue statement
of a material fact contained in the preliminary prospectus (if
used prior to the Effective Date), including the Incorporated
Documents, or in the Registration Statement, Prospectus, the
Schedule 13E-4 or other Offer Materials 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
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contained in this subsection (i) 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 to FPL in writing by or on
behalf of any Dealer Manager for use in connection with the
preparation of the Registration Statement, the Prospectus, the
Schedule 13E-4 or other Offer Materials or any amendment or
supplement to either thereof, or arising out of, or based upon,
statements in or omissions from Exhibit 25 to the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification on Form T-1 of the Trustee under the Indenture;
(ii) any breach by FPL of any representations or warranty or
failure to comply with any of the agreements on the part of FPL
set forth herein, (iii) a withdrawal, rescission, termination or
modification of, or a failure to make or consummate, the Exchange
Offer, or (iv) your acting as Dealer Managers in connection with
the Exchange Offer or that arises in connection with your
engagement under this Agreement. Notwithstanding the foregoing,
the indemnity agreement with respect to each Dealer Manager
contained in clauses (iii) and (iv) of the immediately preceding
sentence shall not apply to any losses, claims, damages,
liabilities, expenses or actions that are finally judicially
determined (or in a settlement tantamount thereto) to have
resulted primarily from such Dealer Manager's (or any person
controlling that Dealer Manager) negligence (unless and only to
the extent the court in which such action or suit was brought
shall determine, upon application, that despite the adjudication
of liability (except for that based upon gross negligence) but in
view of all the circumstances of the case, the Dealer Manager is
fairly and reasonably entitled to indemnity and to the extent the
court shall deem proper). In any such action or suit, FPL shall
not argue that the terms of the Agreement preclude any such
determination by the court. The indemnity agreement contained in
this paragraph shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
any Dealer Manager or any such controlling person, and shall
survive the consummation of the Exchange Offer. Each Dealer
Manager agrees promptly to notify FPL of the commencement of any
litigation or proceedings against it or any of them or any such
controlling person in connection with the Exchange Offer.
(b) Each Dealer Manager agrees to indemnify and hold harmless
FPL, its officers and directors, and each controlling person
thereof within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint
or several, to which it or any of them may become subject under
the Securities Act, the Exchange Act or any other statute or
common law, and to reimburse any such person for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement,
Prospectus, the Schedule 13E-4 or other Offer Materials, 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 to FPL
in writing by or on behalf of such Dealer Manager for use in
connection with the preparation of the Registration Statement or
the Prospectus or any amendment or supplement to either thereof.
The indemnity agreement contained in this paragraph shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of FPL or any of its officers
or directors or any such controlling person, and shall survive
the consummation of the Exchange Offer. FPL agrees promptly to
notify the Dealer Managers of the commencement of any litigation
or proceedings against FPL or any of its officers or directors or
any such controlling person in connection with the Exchange
Offer.
(c) Each of FPL and each of the Dealer Managers 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 may be sought on
account of any indemnity agreement contained therein, it will
promptly give written notice of the commencement thereof to the
party or parties against whom indemnity 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 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
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 the indemnifying party shall
elect not to assume the defense of such action, such indemnifying
party 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 involved 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, to participate in the defense of such action
on behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
8. Termination.
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(a) FPL may terminate the engagement of any or all Dealer
Managers hereunder at any time, which termination shall be
effective immediately upon receipt by such Dealer Manager of
written notice thereof.
(b) This Agreement may be terminated by the Dealer Managers by
delivering written notice thereof to FPL at any time prior to the
Closing Date if (i) after the date hereof and at or prior to the
Closing Date there shall have occurred any general suspension of
trading in securities on the NYSE or there shall have been
established by the NYSE or by the decision of any court any
limitation on prices for such trading or any restrictions on the
distribution of securities, or a general banking moratorium
declared by New York or federal authorities, or (ii) there shall
have occurred any new outbreak of hostilities including, but not
limited to, an escalation of hostilities which existed prior to
the date of this agreement or other national or international
calamity or crisis, the effect of any such event specified in (i)
or (ii) above on the financial markets of the United States shall
be such as to make it impracticable for the Dealer Managers to
solicit tenders of the Preferred Stock. This agreement may also
be terminated at any time prior to the Closing Date if in the
judgment of the Dealer Managers the subject matter of any
amendment or supplement to the Registration Statement, Prospectus
or Schedule 13E-4 prepared and furnished by FPL reflects a
material adverse change in the business, properties or financial
condition of FPL which renders it inadvisable to proceed with the
solicitation of tenders of the Preferred Stock.
(c) Any termination of this Agreement pursuant to this
Section 8 shall be without liability of any party to any other
party except as otherwise provided in Section 9(c) or Section 7.
9. Compensation.
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(a) Dealer Manager Fees. For their services hereunder, FPL
agrees to pay to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. a fee of $0.09375 per $25
principal amount of QUIDS, to ▇▇▇▇▇▇ Brothers Inc. a fee of
$0.046875 per $25 principal amount of QUIDS and to ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. a fee of $0.046875 per $25 principal amount of QUIDS for
each $25 principal amount of QUIDS issued in the Exchange Offer.
Such fees shall be payable upon consummation of the Exchange
Offer.
(b) Soliciting Dealer Fees. FPL agrees to pay to each
Soliciting Dealer (as such term is defined in the Letter of
Transmittal) a solicitation fee of $0.50 per $25 principal amount
of QUIDS issued in respect of shares of Preferred Stock solicited
by such Soliciting Dealer and accepted in the Exchange Offer in
accordance with the terms and procedures set forth in the Letter
of Transmittal. Such solicitation fees shall be payable upon
consummation of the Exchange Offer by delivery by FPL of the
aggregate amount of such fees to ▇▇▇▇▇▇▇, Sachs & Co. who will,
upon receipt thereof, promptly disburse the solicitation fees to
the Soliciting Dealers in accordance with records provided to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. by FPL.
(c) Whether or not any shares of Preferred Stock are tendered
pursuant to the Exchange Offer, FPL covenants and agrees to pay
or cause to be paid the following: (i) the fees for the
registration of the QUIDS under the Securities Act and all fees
and expenses payable in connection with securing any required
review by the National Association of Securities Dealers, Inc.
(exclusive of fees and disbursements of Counsel for the Dealer
Managers incurred with respect thereto, which shall be paid in
accordance with clause (iii) below), (ii) the fees, disbursements
and expenses of FPL's counsel and accountants in connection with
the preparation and filing of the Registration Statement, any
preliminary prospectus relating to the QUIDS, the Prospectus, the
Schedule 13E-4 and the other Offer Materials and any amendments
or supplements to any of the foregoing, and the cost of
furnishing copies thereof to the Dealer Managers, the Exchange
Agent, the Information Agent and the holders of the shares of
Preferred Stock, (iii) reasonable expenses of the Dealer Managers
and the fees and disbursements of Counsel for the Dealer
Managers, which fees and disbursements to be paid by FPL shall
not exceed $92,000 (exclusive of fees and disbursements of
Counsel for the Dealer Managers incurred in connection with the
preparation of any Blue Sky survey in respect of the QUIDS, which
fees and disbursements to be paid by FPL shall not exceed
$5,000), (iv) the fees and expenses of the Exchange Agent and any
agent of the Exchange Agent and the fees and disbursements of
counsel for the Exchange Agent and any Information Agent
appointed in connection with the Exchange Offer, (v) the listing
fees incident to the listing of the QUIDS on the NYSE, (vi) all
costs and expenses incurred in the preparation, printing, mailing
and publishing of the Prospectus, the Registration Statement, the
Schedule 13E-4, the other Offer Materials, this Agreement and all
other documents relating to the Exchange Offer and any amendments
or supplements thereto, (vii) all fees payable to securities
dealers (including the Dealer Managers), commercial banks, trust
companies and nominees as reimbursement of their customary
mailing and handling expenses incurred in forwarding the Offering
Materials to their customers, all fees and expenses of any
forwarding agent, all advertising charges and any applicable
transfer taxes payable by FPL in connection with the Exchange
Offer, (viii) the preparation, printing and distribution of this
Agreement, the Indenture, the QUIDS and any Blue Sky survey in
respect thereof, (ix) the delivery of the QUIDS to be issued
pursuant to the Exchange Offer, and (x) the fees and expenses of
the Trustee.
10. Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed an original.
11. Survival of Certain Provisions. The representations,
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warranties and indemnification contained in this Agreement shall
continue in effect after completion of the Exchange Offer and
shall be effective even if FPL withdraws, abandons, or terminates
the Exchange Offer.
12. Miscellaneous. This Agreement shall be deemed made in New
-------------
York, and shall be governed by the laws of the State of New York
without regard to the rules relating to conflicts of laws
thereunder. This Agreement has been and is made solely for the
benefit of FPL, the Dealer Managers and the other indemnified
parties referred to in Section 7, and their respective
successors, heirs, personal representatives and assigns, and no
other person shall acquire or have any right under or by virtue
of this Agreement.
13. Notice. All communications hereunder shall be in writing
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or by telegram and, if to the Dealer Managers, shall be mailed or
delivered to them at their respective addresses set forth on the
first page of this Agreement, or if to FPL, shall be mailed or
delivered to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasurer.
Very truly yours,
Florida Power & Light Company
By: /s/ Dilek Samil
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Dilek Samil, Treasurer and
Assistant Secretary
Accepted and agreed to as of the date of this letter:
▇▇▇▇▇▇▇, Sachs & Co.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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▇▇▇▇▇▇ Brothers Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Managing Director
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Managing Director
