FLORIDA POWER & LIGHT COMPANY PREFERRED STOCK UNDERWRITING AGREEMENT
Exhibit
1(h)
FLORIDA
POWER & LIGHT COMPANY
PREFERRED
STOCK
______________________________
______________________________
[Date]
To
the
Representatives named in Schedule I
hereto
of
the Underwriters
named
in
Schedule II hereto
Ladies
and Gentlemen:
1. Introductory.
Florida Power & Light Company, a Florida corporation (“FPL”), proposes to
issue and sell shares of FPL’s serial preferred stock, [$100] [without] par
value, with the terms and in the amount specified in Schedule I hereto (the
“Preferred Stock” or the “Shares”). FPL 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 4 hereof, and the term “Underwriter” shall be deemed to mean one
of such Underwriters. If the entity or entities listed in Schedule I hereto
(the
“Representatives”) are the same as the entity or entities listed in Schedule II
hereto, then the terms “Underwriters” and “Representatives,” as used herein,
shall each be deemed to refer to such entity or entities. The Representatives
represent that they have been authorized by each Underwriter to enter into
this
agreement on behalf of such Underwriter and to act for it in the manner herein
provided. All obligations of the Underwriters hereunder are several and not
joint. If more than one entity is named in Schedule I hereto, any action under
or in respect of this agreement may be taken by such entities jointly as the
Representatives or by one of the entities acting on behalf of the
Representatives and such action will be binding upon all the
Underwriters.
2. Representations
and Warranties of FPL. FPL represents and warrants to the several
Underwriters that:
(a) FPL
has
filed with the Securities and Exchange Commission (the “Commission”) a joint
registration statement, as amended, with Florida Power & Light Company
Trust I and Florida Power & Light Company Trust II (together with
Florida Power & Light Company Trust I, “Florida Power & Light
Company Trust”), FPL Group,
Inc.
(“FPL Group”), FPL Group Capital Inc (“FPL Group Capital”), FPL Group Capital
Trust II, FPL Group Capital Trust III (together with FPL Group Capital
Trust II, “FPL Group Capital Trust”), FPL Group Trust I and FPL Group
Trust II (together with FPL Group Trust I, “FPL Group Trust”, and together
with Florida Power & Light Company Trust and FPL Group Capital Trust,
collectively the “Trusts”) on Form S-3, including a prospectus
(Registration Statement Nos. 333-_______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04, 333-_______-05, 333-_______-06, 333-_______-07
and 333-_______-08) (“Registration Statement No. 333-______”), for the
registration under the Securities Act of 1933, as amended (the “Securities
Act”), of (a) an unspecified aggregate amount of (i) first mortgage
bonds of FPL (“Bonds”), (ii) shares of FPL’s serial Preferred Stock, $100
par value (“Serial Preferred Stock”) and shares of FPL’s Preferred Stock without
par value (“No Par Preferred Stock,” and together with the Serial Preferred
Stock, “FPL Preferred Stock”), (iii) junior subordinated debentures of FPL
(“FPL Junior Subordinated Debentures”), (iv) preferred trust securities of
Florida Power & Light Company Trust I (“Florida Power & Light
Company Trust I Preferred Trust Securities”) and (v) preferred trust securities
of Florida Power & Light Company Trust II (together with Florida Power
& Light Company Trust I Preferred Trust Securities, “Florida Power &
Light Company Trust Preferred Trust Securities), (b) guarantee of FPL
related to the Florida Power & Light Company Trust Preferred Trust
Securities (the “Florida Power & Light Company Trust Guarantee”),
(c) an unspecified aggregate amount of (i) senior debt securities of
FPL Group Capital (“FPL Group Capital Senior Debt Securities”), (ii) FPL Group’s
shares of common stock, $.01 par value (the “Common Stock”),
(iii) shares of FPL Group’s preferred stock, $.01 par value (“FPL Group
Preferred Stock”), (iv) shares of FPL Group Capital’s preferred stock, $.01 par
value (“FPL Group Capital Preferred Stock”), (v) contracts to purchase
Common Stock or FPL Group Preferred Stock or other agreements or instruments
requiring FPL Group to issue Common Stock or FPL Group Preferred Stock
(collectively, “Stock Purchase Contracts”), (vi) units, each representing
ownership of a Stock Purchase Contract and any of debt securities of FPL Group
Capital, debt securities of FPL Group, FPL Group Trust Preferred Trust
Securities (as defined below), FPL Group Capital Preferred Trust Securities
(as
defined below) or debt securities of third parties, including U.S. Treasury
securities (“Stock Purchase Units”), (vii) junior subordinated debentures of FPL
Group Capital (“FPL Group Capital Junior Subordinated Debentures”),
(viii) junior subordinated debentures of FPL Group (“FPL Group Junior
Subordinated Debentures”), (ix) debt securities of FPL Group (“FPL Group Senior
Debt Securities”), (x) preferred trust securities of FPL Group Capital
Trust II (“FPL Group Capital Trust II Preferred Trust Securities”),
(xi) preferred trust securities of FPL Group Capital Trust III
(together with FPL Group Capital Trust II Preferred Trust Securities, the “FPL
Group Capital Trust Preferred Trust Securities”), (xii) preferred trust
securities of FPL Group Trust I (“FPL Group Trust I Preferred Trust
Securities”), and (xiii) preferred trust securities of FPL Group
Trust II (together with FPL Group Trust I Preferred Trust Securities, “FPL
Group Trust Preferred Trust Securities”) and (d) guarantees of FPL Group
(“FPL Group Guarantees”) related to the FPL Group Capital Senior Debt
Securities, FPL Group Capital Junior Subordinated Debentures, FPL Group Capital
Preferred Stock, FPL Group Capital Trust Preferred Trust Securities and FPL
Group Trust Preferred Trust Securities. Such registration statement has become
effective and no stop order suspending such
2
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, threatened
by
the Commission. References herein to the term “Registration Statement” as of any
given time shall mean Registration Statement No. 333-_______, as amended or
supplemented to such time, including all documents incorporated by reference
therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated
Documents”) and any prospectus, preliminary prospectus supplement or prospectus
supplement relating to the Shares deemed to be a part thereof pursuant to Rule
430B that has not been superseded or modified. References herein to the term
“Registration Statement” without reference to a time means the Registration
Statement as of ____ [A.M./P.M.], New York City time, on [the date hereof]
(which date and time is the earlier of the date and time of (x) the first
use of the preliminary prospectus supplement relating to the Shares and
(y) the first contract of sale of the Shares), which time shall be
considered the “Effective Date” of the Registration Statement. For purposes of
the definitions of “Registration Statement” in the preceding two sentences,
information contained in any prospectus, preliminary prospectus supplement
or
prospectus supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430B shall be considered to be included
in the Registration Statement as of the time specified in Rule 430B. References
herein to the term “Pricing Prospectus” shall mean the prospectus relating to
FPL and Florida Power & Light Company Trust forming a part of Registration
Statement No. 333-______ (the “Base Prospectus”), including all Incorporated
Documents and any prospectus or prospectus supplement relating to the Shares
deemed to be a part of such registration statement that has not been superseded
or modified. For purposes of the definition of “Pricing Prospectus” with respect
to a particular offering of the Preferred Stock, information contained in a
prospectus or prospectus supplement (other than a prospectus or prospectus
supplement that relates only to securities issued by FPL Group, FPL Group
Capital, FPL Group Capital Trust, FPL Group Trust or FPL Trust or to securities
issued by FPL other than the Shares) that is deemed retroactively to be a part
of the Registration Statement pursuant to Rule 430B shall be considered to
be
included in the Pricing Prospectus as of the time that form of prospectus or
prospectus supplement is filed with the Commission pursuant to Rule 424 of
the
general rules and regulations of the Securities Act (“Rule 424”).
References herein to the term “Prospectus” means the Pricing Prospectus that
discloses the public offering price and other final terms of the Shares and
otherwise satisfies Section 10(a) of the Securities Act. 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. Each of the Underwriters acknowledges that on
or
subsequent to the Closing Date, FPL may file a post-effective amendment to
the
Registration Statement pursuant to Rule 462(d) under the Securities Act or
a
Current Report on Form 8-K in order to file one or more unqualified opinions
of
counsel and any documents executed in connection with the offering of the
Shares.
(b) The
Registration Statement constitutes an “automatic shelf registration statement”
(as defined in Rule 405 under the Securities Act) filed within three years
of
the date hereof; the Registration Statement became effective upon filing; no
notice of objection of the Commission with respect to the use of the
Registration Statement pursuant to Rule 401(g)(2) under the Securities Act
has
been received by FPL and not
3
removed;
and with respect to the Shares, FPL is a “well-known seasoned issuer” within the
meaning of subparagraph (1)(ii) of the definition of “well-known seasoned
issuer” in Rule 405 under the Securities Act and is not an “ineligible issuer”
(as defined in Rule 405 under the Securities Act).
(c) The
Registration Statement at the Effective Date fully complied, and the Prospectus,
both as of the date hereof and at the Closing Date, and the Registration
Statement 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 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, both as of the date hereof
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 (c) 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 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
(collectively, the “Statements of Eligibility”) or to any statements or
omissions made in the Registration Statement or the Prospectus relating to
The
Depository Trust Company (“DTC”) Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(d) As
of the
Applicable Time (as defined below), the Pricing Disclosure Package (as defined
below) did not contain 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 (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 Underwriter through the Representatives expressly for use in
connection with the preparation of the Pricing Prospectus, any preliminary
prospectus supplement or any Issuer Free Writing Prospectus (as defined below),
or to any statements in or omissions from the Pricing Prospectus, any
preliminary prospectus supplement or any Issuer Free Writing Prospectus relating
to the DTC Book-Entry-Only System that are based solely on information contained
in published reports of DTC. References to the term “Pricing Disclosure Package”
shall mean the documents listed in Schedule III, taken together as a whole.
References to the term “Issuer Free Writing
4
Prospectus”
shall mean an issuer free writing prospectus, as defined in Rule 433 under
the
Securities Act. References to the term “Free Writing Prospectus” shall mean a
free writing prospectus, as defined in Rule 405 under the Securities Act.
References to the term “Applicable Time” means ____[A.M./P.M.] on [the date
hereof]. If there occurs an event or development as a result of which the
Pricing Disclosure Package would include an untrue statement of a material
fact
or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not misleading,
FPL
promptly will notify the Representatives so that any use of the Pricing
Disclosure Package may cease until it is amended or supplemented.
(e) As
of the
Applicable Time, no Issuer Free Writing Prospectus includes any information
that
conflicts with the information contained in the Registration Statement, the
Prospectus or the Pricing Prospectus, including any document incorporated by
reference therein that has not been superseded or modified.
(f) The
financial statements included as part of or incorporated by reference in the
Pricing Disclosure Package, the Prospectus and the Registration Statement
present fairly the consolidated financial condition and results of operations of
FPL and its subsidiaries taken as a whole 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 Pricing Disclosure Package, the Prospectus and the
Registration Statement; and Deloitte & Touche LLP, who has audited the
audited financial statements of FPL, is an independent registered public
accounting firm as required by the Securities Act and the Exchange Act and
the
rules and regulations of the Commission thereunder.
(g) Except
as
reflected in or contemplated by the Pricing Disclosure Package, since the
respective most recent times as of which information is given in the Pricing
Disclosure Package, there has not been any material adverse change in the
business, properties or financial condition of FPL 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 or any of its subsidiaries that is material
to FPL and its subsidiaries taken as a whole, other than changes and
transactions contemplated by the Pricing Disclosure Package and transactions
in
the ordinary course of business. FPL and its subsidiaries have no contingent
obligation material to FPL and its subsidiaries taken as a whole, which is
not
disclosed in or contemplated by the Pricing Disclosure Package.
(h) The
execution and delivery of this agreement and the consummation of the
transactions herein contemplated by FPL 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 “FPL Charter”), by-laws and
applicable law. The execution and delivery by FPL of this agreement and of
a
certificate or certificates for the Shares and the performance by FPL of its
obligations under this agreement and under the Shares 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
5
of
Amendment to the FPL Charter relating to the Shares (the “Articles of
Amendment”) with the appropriate office of the Department of State, State of
Florida which shall be filed by FPL prior to the Closing Date.
(i) The
execution and delivery of this agreement and the consummation of the
transactions herein contemplated by FPL and the fulfillment of the terms hereof
on the part of FPL to be fulfilled will not result in a breach of any of the
terms or provisions of, or constitute a default under, the FPL Charter (as
amended by the Articles of Amendment) or by-laws, or any indenture, mortgage,
deed of trust or other agreement or instrument to which FPL or any of its
subsidiaries is now a party, or violate any law or any order, rule, decree
or
regulation applicable to FPL or any of its subsidiaries of any federal or state
court, regulatory board or body or administrative agency having jurisdiction
over FPL or any of 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 and its subsidiaries
taken as a whole.
(j) FPL
has
no direct or indirect significant subsidiaries (as defined in Regulation S-X
(17
CFR Part 210)).
(k) FPL
has
been duly organized, is validly existing and is in good standing under the
laws
of its jurisdiction of organization, and is duly qualified to do business and
is
in good standing as a foreign corporation in each jurisdiction in which its
ownership of properties or the conduct of its 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 and
its
subsidiaries taken as a whole, and has the power and authority as a corporation
necessary to own or hold its respective properties and to conduct the businesses
in which it is engaged.
(l) The
Shares conform in all material respects to the description thereof in the
Pricing Disclosure Package and the Prospectus.
(m) The
Preferred Stock has been validly authorized and, when issued and delivered
by
FPL against payment therefor in accordance with the provisions of this
agreement, will be fully paid and non-assessable.
(n) FPL
is
not, and after giving effect to the offering and sale of the Preferred Stock
and
the application of the proceeds thereof as described in the Pricing Disclosure
Package and the Prospectus will not be, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended (“1940
Act”).
3. Purchase
and Sale. On the basis of the representations and warranties herein
contained, and subject to the terms and conditions in this agreement, FPL agrees
to sell to the respective Underwriters named in Schedule II hereto, severally
and not jointly, and the respective Underwriters agree, severally and not
jointly, to purchase from FPL the respective number of Shares set forth opposite
their respective names in Schedule II hereto at the purchase price per Share
set
forth in Schedule I hereto as the Purchase Price.
6
The
Underwriters agree to make a bona fide public offering of the Shares as set
forth in the Pricing Disclosure Package, such public offering to be made as
soon
after the execution of this agreement as practicable, subject, however, to
the
terms and conditions of this agreement. The Underwriters have advised FPL that
the Shares will be offered to the public at the amount per Share as set forth
in
Schedule I hereto as the Price to Public and to certain dealers selected by
the
Representatives at a price which represents a concession. Such dealers’
concession may not be in excess of $____ per Share under the Price to
Public.
Each
Underwriter agrees that (i) no information that is presented by it to investors
has been or will be inconsistent with the information contained in the Pricing
Disclosure Package as it may then be amended or supplemented and (ii) it will
make no offer that would constitute a Free Writing Prospectus that is required
to be filed by FPL pursuant to Rule 433 under the Securities Act other than
an
Issuer Free Writing Prospectus in accordance with Section 5(h).
4. 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
___ A.M., New York City time, on the closing date set forth on Schedule I,
at
the offices of Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other time, date or place as may be agreed
upon in writing by FPL 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 FPL and the Representatives shall
otherwise agree. For the purpose of expediting the checking of the Shares by
the
Representatives on behalf of the Underwriters, FPL agrees to make such Shares
available to the Representatives for such purpose at the offices of Xxxxxx
Xxxx
Xxxxx Raysman & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
FPL
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 (otherwise than
by
reason of any failure on the part of FPL 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, 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 would still
remain unpurchased, then FPL 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
7
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
FPL that they have arranged for the purchase of such Shares or (ii) FPL notifies
the non-defaulting Underwriters that it has arranged for the purchase of such
Shares, the non-defaulting Underwriters or FPL 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 FPL 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 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 3 hereof), except as otherwise provided in Section 8 and
subsections (d) and (f) of Section 5 hereof.
5. Covenants
of FPL. FPL agrees with the several Underwriters that:
(a) FPL
will
timely file the Prospectus with the Commission pursuant to Rule 424. FPL
has complied and will comply with Rule 433 under the Securities Act in
connection with the offering and sale of the Shares, including applicable
provisions in respect of timely filing with the Commission, legending and
record-keeping.
(b) FPL
will
prepare a final term sheet, containing a description of the pricing terms of
the
Shares, substantially in the form of Schedule I hereto and approved by the
Representatives and will timely file such term sheet with the Commission
pursuant to Rule 433 under the Securities Act.
(c) FPL
will
deliver to the Representatives and to Counsel for the Underwriters (as defined
below) 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 FPL to be in the form as originally filed, 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, FPL will deliver or cause to be delivered to the
Underwriters through the Representatives as many copies of the Prospectus and
any Issuer Free Writing Prospectus as the Representatives may reasonably request
for the purposes contemplated by the Securities Act.
(d) FPL
has
paid or cause to be paid or will pay or cause to be paid all expenses in
connection with the (i) preparation and filing of the Registration Statement,
any preliminary prospectus, the Prospectus and any Issuer Free Writing
Prospectus, (ii) issuance and delivery of the Shares as provided in
Section 4 hereof, and (iii) printing
8
and
delivery to the Representatives for the account of the Underwriters, in
reasonable quantities, of copies of the Registration Statement, any preliminary
prospectus, the Prospectus and any Issuer Free Writing Prospectus. FPL will
pay
or cause to be paid all taxes, if any (but not including any transfer taxes),
on
the issuance of the Shares. FPL 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 6, 7 or 9 hereof, FPL 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 FPL shall
reimburse or cause to be reimbursed 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 for such
out-of-pocket expenses. FPL shall not in any event be liable to any of the
several Underwriters for damages on account of loss of anticipated
profits.
(e) During
a
period of nine months after the date of this agreement, if any event relating
to
or affecting FPL shall occur which, in the opinion of FPL, should be set forth
in a supplement to or an amendment of the Prospectus (including an Issuer Free
Writing Prospectus) in order to make the Prospectus not misleading in the light
of the circumstances when it is delivered to a purchaser, FPL will forthwith
at
its expense prepare, file with the Commission, if required, and furnish to
the
Representatives a reasonable number of copies of such supplement or supplements
or amendment or amendments to the Prospectus (including an Issuer Free Writing
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, FPL 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.
(f) FPL
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 United States 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 FPL
shall 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 to be unduly
burdensome.
(g) FPL
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
Preferred Stock) as soon as practicable an earnings statement (which need not
be
9
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.
(h) Prior
to
the termination of the offering of the Shares, FPL will not file any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or any amendment or supplement to the Pricing Disclosure Package without prior
notice to the Representatives and to Hunton & Xxxxxxxx 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. FPL has not made any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a Free Writing Prospectus required to be filed by FPL with the Commission or
retained by FPL under Rule 433 under the Securities Act, other than a pricing
term sheet substantially in the form as set forth on Schedule I, and will not
make any such offer without prior notice to the Representatives and to Counsel
for the Underwriters, or any such offer to which the Representatives shall
reasonably object in writing, or which shall be unsatisfactory to Counsel for
the Underwriters.
(i) FPL
will
advise the Representatives promptly of the filing of the Prospectus pursuant
to
Rule 424, of the filing of any material pursuant to Rule 433 and of any
amendment or supplement to the Pricing Disclosure Package or the 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, of
receipt from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule
401(g)(2) under the Securities Act, and, if such a stop order should be entered,
or notice of objection should be received, use every commercially reasonable
effort to obtain the prompt removal thereof.
(j) FPL
will
use its commercially reasonable best efforts to deliver, in appropriate form
for
filing, to the Department of State, State of Florida, on or before the Closing
Date the articles of amendment required by Section 607.0602, Florida Statues,
relating to the Shares, and will use its commercially reasonable best efforts
to
have such articles of amendment accepted for filing by such Department of State
on or before the Closing Date.
6. 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 of its obligations to be performed hereunder
on or prior to the Closing Date and to the following conditions:
(a) The
representations and warranties made by FPL herein and qualified by materiality
shall be true and correct in all respects and the representations and warranties
made by FPL herein that are not qualified by materiality shall be true and
correct in all material respects as of the Closing Date, in each case as if
made
on and as of such date
10
and
the
Representatives shall have received, prior to payment for the Shares, a
certificate from FPL dated the Closing Date and signed by an officer of FPL
to
that effect.
(b) No
stop
order suspending the effectiveness of the Registration Statement shall be in
effect on the Closing Date; no order of the Commission directed to the adequacy
of any Incorporated Document shall be in effect on the Closing Date; no
proceedings for either such purpose shall be pending before, or threatened
by,
the Commission on such date; and no notice of objection by the Commission to
the
use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act shall have been received
by
FPL and not removed by such date; and the Representatives shall have received,
prior to payment for the Shares, a certificate from FPL dated the Closing Date
and signed by an officer of FPL to the effect that, to the best of his or her
knowledge, no such order is in effect and no proceedings for either such purpose
are pending before, or to the knowledge of FPL threatened by, the
Commission.
(c) On
the
Closing Date, there shall be in full force and effect an authorization of the
Florida Public Service Commission with respect to the issuance and sale of
the
Shares on the terms herein stated or contemplated, and containing no provision
unacceptable to the Representatives by reason of the fact that it is materially
adverse to FPL, it being understood that no authorization provided to Counsel
for the Underwriters and in effect at the date of this agreement contains any
such unacceptable provision.
(d) On
the
Closing Date, the Representatives shall have received from Squire, Xxxxxxx
&
Xxxxxxx L.L.P., counsel to FPL, Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP,
counsel to FPL, and Hunton & Xxxxxxxx LLP, Counsel for the Underwriters,
opinions (with a copy for each of the Underwriters) in substantially the form
and substance prescribed in Schedules IV, V and VI hereto (i) with such
changes therein as may be agreed upon by FPL 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.
(e) On
the
date of this agreement and on the Closing Date, the Representatives shall have
received from Deloitte & Touche LLP a letter or letters (which may refer to
letters previously delivered to the Representatives) (with copies thereof for
each of the Underwriters) dated the respective dates of delivery thereof to
the
effect that (i) they are an independent registered public accounting firm
with respect to FPL 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 audited by them
and
incorporated by reference in the Pricing Prospectus or the Pricing Prospectus
and the Prospectus, as applicable, 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. 100, Interim Financial Information,
on
the unaudited condensed consolidated
11
financial
statements of FPL, if any, incorporated by reference in the Pricing Prospectus
or the Pricing Prospectus and the Prospectus, as applicable, a reading of the
latest available interim unaudited [condensed] consolidated financial statements
of FPL, if any, since the close of FPL’s most recent audited fiscal year, a
reading of the minutes and consents of the Board of Directors, the Finance
Committee of the Board of Directors, the Stock Issuance Committee of the Board
of Directors, and the sole common shareholder of FPL since the end of the most
recent audited fiscal year, and inquiries of officials of FPL who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
standards of the Public Company Accounting Oversight Board (United States)
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, if any, incorporated by reference in the Pricing Prospectus
or the Pricing Prospectus and the Prospectus, as applicable, (1) do not
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the published rules
and regulations thereunder and (2) except as disclosed in the Pricing
Prospectus or the Pricing Prospectus and the Prospectus, as applicable, 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 incorporated by reference in the Pricing Prospectus or the
Pricing Prospectus and the Prospectus, as applicable; (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 date of such letter, there was any change
in the common stock or additional paid-in capital, increase in the preferred
stock or long-term debt of FPL and its subsidiaries, or decrease in FPL’s common
shareholders’ equity, in each case as compared with amounts shown in the most
recent [condensed] consolidated balance sheet incorporated by reference in
the
Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
except in all instances for changes, increases or decreases which the Pricing
Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
discloses have occurred or may occur, or as occasioned by the declaration,
provision for, or payment of dividends, 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 Pricing Prospectus
or the Pricing Prospectus and the Prospectus, as applicable, 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 date of such letter, 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 Pricing Prospectus or the Pricing Prospectus and the
Prospectus, as applicable, 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 Pricing Prospectus or the Pricing Prospectus and the
Prospectus, as applicable, and Exhibit 12(b) to the Registration Statement
and
such other items as the Representatives may reasonably request.
12
(f) Since
the
respective most recent times as of which information is given in the Pricing
Disclosure Package, and up to the Closing Date, (i) there shall have been
no material adverse change in the business, properties or financial condition
of
FPL and its subsidiaries taken as a whole, except as disclosed in or
contemplated by the Pricing Disclosure Package, and (ii) there shall have
been no transaction entered into by FPL or any of its subsidiaries that is
material to FPL and its subsidiaries taken as a whole, in each case other than
transactions disclosed in or contemplated by the Pricing Disclosure Package,
and
transactions in the ordinary course of business; and at the Closing Date, the
Representatives shall have received a certificate to such effect from FPL signed
by an officer of FPL.
(g) 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.
(h) [The
Shares shall have been approved for listing on The New York Stock Exchange,
Inc.
(“NYSE”) upon official notice of issuance.]
In
case
any of the conditions specified above in this Section 6 shall not have been
fulfilled, this agreement may be terminated by the Representatives upon mailing
or delivering written notice thereof to FPL. Any such termination shall be
without liability of any party to any other party except as otherwise provided
in subsections (d) and (f) of Section 5 hereof.
7. Condition
of FPL’s Obligations. The obligation of FPL 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; no
proceedings for either such purpose shall be pending before, or threatened
by,
the Commission on such date; and no notice of objection by the Commission to
the
use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act shall have been received
by
FPL and not removed by such date.
(b) On
the
Closing Date there shall be in full force and effect an authorization of the
Florida Public Service Commission with respect to the issuance and sale of
the
Shares on the terms herein stated or contemplated, and containing no provision
unacceptable to FPL by reason of the fact that it is materially adverse to
FPL,
it being understood that no authorization in effect at the date of this
agreement contains any such unacceptable provision.
In
case
the conditions specified above in this Section 7 shall not have been
fulfilled, this agreement may be terminated by FPL 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 (d) and (f) of Section 5 hereof.
13
8. Indemnification.
(a) FPL
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, including all
Incorporated Documents, or in the Registration Statement, the Pricing
Prospectus, the Prospectus or any Issuer Free Writing 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 8 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 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,
the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or
any
amendment or supplement to any 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 8 in respect of any preliminary prospectus, the Pricing Prospectus,
any Issuer Free Writing Prospectus or the Prospectus shall not inure to the
benefit of any Underwriter (or of any officer or director 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 in respect
of any preliminary prospectus, the Pricing Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, each as may be then supplemented or amended,
furnished by such Underwriter to a person to whom any of the Shares were sold
(excluding in all cases, however, any document then incorporated by reference
therein), insofar as such indemnity relates to any untrue or misleading
statement made in or omission from such preliminary prospectus, Pricing
Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a
supplement or amendment to such preliminary prospectus, Pricing Prospectus,
Prospectus or Issuer Free Writing Prospectus (excluding in all cases, however,
any document then incorporated by reference therein) (i) is furnished on a
timely basis by FPL to the Underwriter, (ii) is required by law or regulation
to
have been conveyed to such person by or on behalf of such Underwriter, at or
prior to the entry into the contract of sale of the Shares with such person,
but
was not so conveyed (which conveyance may be oral or written) by or on behalf
of
such Underwriter and (iii) would have cured the defect giving rise to such
loss,
claim, damage or liability. The indemnity agreement of FPL contained in this
subsection (a) of Section 8 and the representations and warranties
14
of
FPL
contained in Section 2 hereof shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or any such officer, director or controlling person, and shall survive the
delivery of the Shares. The Underwriters agree promptly to notify FPL, 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
FPL, its officers and directors, and each person who controls FPL 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 [(1)] an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement, the Pricing Prospectus,
the
Prospectus [, any Underwriter Free Writing Prospectus] or any Issuer Free
Writing 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 by or on behalf
of such Underwriter, through the Representatives, expressly for use in
connection with the preparation of any preliminary prospectus, the Registration
Statement, the Pricing Prospectus, the Prospectus [, any Underwriter Free
Writing Prospectus] or any Issuer Free Writing Prospectus or any amendment
or
supplement to any thereof [or (2) an
untrue
statement or alleged untrue statement of a material fact contained in any
Underwriter Free Writing Prospectus distributed by or on behalf of such
Underwriter unless such statement or omission was made in reliance upon and
in
conformity with information furnished in writing by FPL
expressly
for use in connection with such Underwriter Free Writing Prospectus].
The
Underwriters hereby furnish to FPL in writing expressly for use in the
preliminary prospectus, the Registration Statement, the Pricing Prospectus,
the
Prospectus [, and Underwriter Free Writing Prospectus] and any Issuer Free
Writing Prospectus [insert information provided by the Underwriters]. FPL
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, the Pricing Prospectus, the Prospectus [, any
Underwriter Free Writing Prospectus] or any Issuer Free Writing Prospectus.
The
indemnity agreement of the respective Underwriters contained in this
subsection (b) of Section 8 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 other Underwriter or any such
controlling person, and shall survive the delivery of the Shares. FPL agrees
promptly to notify the Representatives of the commencement of any litigation
or
proceedings against FPL (or any controlling person thereof) or any of its
officers or directors in connection with the issuance and sale of the
Shares.
15
(c) FPL
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 8, 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 this
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 the indemnifying party or 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 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 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 and
each of the several Underwriters each agree that without the prior written
consent of the other parties to such action who are parties to this agreement,
which consent shall not be unreasonably withheld, it will not settle, compromise
or consent to the entry of any judgment in any claim or proceeding in respect
of
which such party intends to seek indemnity or contribution under the provisions
of this Section 8, 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 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 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
16
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 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 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.
9. Termination.
This agreement may be terminated by the Representatives by delivering written
notice thereof to FPL, 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 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 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 Representatives, impracticable or inadvisable to proceed with
the offering of the Shares as contemplated in the Pricing Disclosure Package
or
for the Underwriters to enforce contracts for the sale of the Shares[,
or
(b) (i)
there
shall have been any downgrading or any notice of any intended or potential
downgrading in the ratings accorded to the Shares or any preferred stock of
FPL
which are of the same class as the Shares by either [Xxxxx’x Investors Service,
Inc. (“Moody’s”)] or [Standard & Poor’s Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. (“S&P”)], or (ii) either [Moody’s] or
[S&P] shall have publicly
17
announced
that either has under surveillance or review, with possible negative
implications, its ratings of the Shares or any preferred stock of FPL which
are
of the same class as the Shares, the effect of any such event specified in
(i)
or (ii) above being such as to make it, in the reasonable judgment of the
Representatives, impracticable or inadvisable to proceed with the offering
of
the Shares as contemplated in the Pricing Disclosure Package 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 or any Issuer Free
Writing Prospectus prepared and furnished by FPL after the date hereof reflects
a material adverse change in the business, properties or financial condition
of
FPL 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 9 shall be without liability of any party to any
other party except as otherwise provided in subsections (d) and (f) of
Section 5 hereof.
10. Miscellaneous.
(a) 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, the
several Underwriters and, with respect to the provisions of Section 8
hereof, each officer, director or controlling person referred to in said
Section 8, 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.
(b) FPL
acknowledges and agrees that the Underwriters are acting solely in the capacity
of arm’s length contractual counterparties to FPL with respect to the offering
of the Shares as contemplated by this agreement and not as financial advisors
or
fiduciaries to FPL in connection herewith. Additionally, none of the
Underwriters is advising FPL as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction in connection with the offering of the
Shares as contemplated by this agreement. Any review by the Underwriters of
FPL
in connection with the offering of the Preferred Stock contemplated by this
agreement and the transactions contemplated by this agreement will not be
performed on behalf of FPL.
11. 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 II hereto, or if to FPL, shall be mailed or delivered
to
it at 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Treasurer.
12. Counterparts.
This agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall
18
be
deemed
an original, but all such counterparts shall together constitute one and the
same instrument.
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,
Florida
Power & Light Company
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
FLORIDA
POWER & LIGHT COMPANY
Pricing
Term Sheet
[Date]
Issuer:
Florida Power & Light Company
Underwriting
Agreement dated
Representatives:
Shares:
Number
of Shares:
|
Designation:
|
Dividend
Rate:
|
Price
to Public:
|
Purchase
Price:
|
Proceeds
to FPL
(before
expenses):
|
Settlement
Date:
|
CUSIP/ISIN
Number:
|
[Expected
Credit Ratings*:]
[*A
security rating is not a recommendation to buy, sell or hold securities and
should be evaluated independently of any other rating. The rating is subject
to
revision or withdrawal at any time by the assigning rating
organization.]
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on
the
SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling
__________ toll-free __________ or __________ toll-free __________.
I-1
SCHEDULE
II
Representatives
|
Addresses
|
Underwriter
|
Number
of Shares
|
Total
|
|
II-1
SCHEDULE
III
PRICING
DISCLOSURE PACKAGE
(1) Prospectus,
dated ________________
(2) Preliminary
Prospectus Supplement dated _______________ (which shall be deemed to include
the Incorporated Documents filed at or prior to the Applicable Time to the
extent not superseded by Incorporated Documents filed at or prior to the
Applicable Time)
(3) Issuer
Free Writing Prospectuses
(a) Pricing
Term Sheet attached as Schedule I hereto
III-1
SCHEDULE
IV
[LETTERHEAD
OF SQUIRE, XXXXXXX & XXXXXXX L.L.P.]
SCHEDULE
V
[LETTERHEAD
OF XXXXXX XXXX XXXXX RAYSMAN & XXXXXXX LLP]
SCHEDULE
VI
[LETTERHEAD
OF HUNTON & XXXXXXXX LLP]
[Forms
of
legal opinions omitted]
IV-1