EXHIBIT 1
[Name of Issuer]
[Name of Security]
------------------------------
UNDERWRITING AGREEMENT
------------------------------
[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. [(1)FPL Group, Inc., a Florida corporation ("FPL
Group"), proposes to issue and sell shares of FPL Group's common stock, $.01 par
value (the "Common Stock"), and the preferred share purchase rights attached
thereto (the "Rights") (collectively referred to as "Shares") in the amount of
________ Shares (referred to as the "Securities").] [(2)FPL Group Capital Inc, a
Florida corporation ("FPL Group Capital") and a wholly-owned subsidiary of FPL
Group, Inc., a Florida corporation ("FPL Group"), proposes to issue and sell its
debt securities of the series designation[s], with the terms and in the
principal amount[s] specified in Schedule I hereto (the "FPL Group Capital
Debentures" or "Securities"). The FPL Group Capital Debentures will be
absolutely, irrevocably and unconditionally guaranteed by FPL Group pursuant to
and in accordance with the terms of the Guarantee Agreement (as hereinafter
defined).] [(3)FPL Group, Inc., a Florida corporation ("FPL Group"), proposes to
issue and sell FPL Group's new securities ("Securities"), and in connection
therewith FPL Group Capital Inc, a Florida corporation ("FPL Group Capital") and
a wholly-owned subsidiary of FPL Group, proposes to issue and sell certain of
its debt securities as specified herein. The Securities will consist of _______
equity units consisting of ______ of FPL Group's corporate units ("Corporate
Units"), with a stated amount per Corporate Unit of $__ (the "Stated Amount").]
[(1)FPL Group hereby confirms its agreement with the several Underwriters (as
defined below) as set forth herein.] [(2,3)Each of FPL Group and FPL Group
Capital hereby confirms its agreement with the several Underwriters (as defined
below) as set forth herein.]
--------------------
(1) For use in connection with Common Stock.
(2) For use in connection with Debt Securities.
(3) For use in connection with Stock Purchase Units.
The term "Underwriters" as used herein shall be deemed to mean the
entity or several entities named in Schedule II hereto and any underwriter
substituted as provided in Section [6] hereof and the term "Underwriter" shall
be deemed to mean one of such Underwriters. If the entity or entities listed in
Schedule I hereto (the "Representatives") are the same as the entity or entities
listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such entity
or entities. The Representatives represent that they have been authorized by
each Underwriter to enter into this agreement on behalf of such Underwriter and
to act for it in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one entity is named in
Schedule I hereto, any action under or in respect of this agreement may be taken
by such entities jointly as the Representatives or by one of the entities acting
on behalf of the Representatives and such action will be binding upon all the
Underwriters.
2. Description of Securities. [(1)Pursuant to, and subject to the
provisions of, the Rights Agreement, dated as of July 1, 1996, between FPL Group
and EquiServe Trust Company, N.A., as successor to Fleet National Bank (formerly
known as The First National Bank of Boston), as Rights Agent, as amended by an
Amendment to Rights Agreement, dated as of July 30, 2000 ("Rights Agreement"),
and the Restated Articles of Incorporation of FPL Group, as amended, one Right
will be issued with each newly-issued share of Common Stock.] [(2)The FPL Group
Capital Debentures [of each series] will be a series of debentures issued by FPL
Group Capital under an Indenture, dated as of June 1, 1999, to The Bank of New
York, as Trustee, which has been heretofore delivered to the Representatives
(together with any amendments or supplements thereto, the "Indenture"). The FPL
Group Capital Debentures will be absolutely, irrevocably and unconditionally
guaranteed by FPL Group pursuant to, and in accordance with, the terms of a
Guarantee Agreement, dated as of June 1, 1999, between FPL Group, as Guarantor,
and The Bank of New York, as Guarantee Trustee, which has been heretofore
delivered to the Representatives (the "Guarantee Agreement"). The term
"Guarantee" as used in this agreement shall refer to the guarantee pursuant to
the Guarantee Agreement relating to the FPL Group Capital Debentures (as defined
below).] [(3)Each Corporate Unit will consist of a unit comprised of (a) a stock
purchase contract (a "Purchase Contract") under which (i) the holder will
purchase from FPL Group not later than __________, ____ (the "Purchase Contract
Settlement Date"), for $__ in cash, a fraction of a newly issued share of FPL
Group's common stock, $.01 par value (the "Common Stock"), including the
preferred share purchase rights, if any, attached thereto (the "Rights")
(collectively referred to as the "Shares") determined as provided in the
Purchase Contract, and (ii) FPL Group will pay the holder unsecured contract
adjustments payments ("Contract Adjustment Payments") at the rate of ____% of
the Stated Amount per annum, subject to the right of FPL Group to defer such
payments, and (b) prior to the Purchase Contract Settlement Date, beneficial
ownership of a Series __ Debenture due __________, ____ issued by FPL Group
Capital (an "FPL Group Capital Debenture"), having a principal amount of $__.
The FPL Group Capital Debentures will be a series of debentures issued by FPL
Group Capital under an Indenture, dated as of June 1, 1999, to The Bank of New
York, as Trustee (together with any amendments and supplements thereto, the
"Indenture"), a copy of which has been heretofore delivered to the
Representatives, and will be absolutely, irrevocably and unconditionally
guaranteed by FPL Group pursuant to, and in accordance with, the terms of a
Guarantee Agreement, dated as of June 1, 1999, between FPL Group, as Guarantor,
and The Bank of New York, as Guarantee Trustee, a copy of which has been
heretofore delivered to the Representatives (the "Guarantee Agreement"). The
term "Guarantee" as used in this agreement shall refer to the guarantee pursuant
2
to the Guarantee Agreement relating to the FPL Group Capital Debentures. In
accordance with the terms of the Purchase Contract Agreement, dated as of
__________, ____ (the "Purchase Contract Agreement"), between FPL Group and The
Bank of New York, as Purchase Contract Agent and Trustee (the "Purchase Contract
Agent"), the FPL Group Capital Debentures constituting a part of the Corporate
Units will be pledged by the Purchase Contract Agent, on behalf of the holders
of the Securities (as defined herein), to __________, as Collateral Agent,
pursuant to the Pledge Agreement, dated as of __________, ____ (the "Pledge
Agreement"), among FPL Group, the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent and the Securities Intermediary, to secure the holders'
obligations to purchase Shares pursuant to the Purchase Contracts. Under certain
circumstances, holders of Corporate Units may substitute certain U.S. Treasury
securities for the FPL Group Capital Debentures that are a part of such holders'
Corporate Units and thereby create treasury units ("Treasury Units") pursuant to
the terms of the Purchase Contract Agreement and the Pledge Agreement. Also,
under certain circumstances, the FPL Group Capital Debentures will be subject to
remarketing pursuant to a Remarketing Agreement, dated as of __________, ____
among __________, as Remarketing Agent and as Reset Agent, FPL Group, FPL Group
Capital and the Purchase Contract Agent (the "Remarketing Agreement").]
3. [(2,3)Representations and Warranties of FPL Group Capital. FPL
Group Capital represents and warrants to the several Underwriters that:
(a) FPL Group Capital has, together with FPL Group, filed with
the Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3, including a prospectus
("Registration Statement Nos. 333-85218 and 000-00000-00"), for the
registration under the Securities Act of 1933, as amended (the
"Securities Act"), of $2,000,000,000 aggregate amount of (i) FPL Group
Capital's unsecured debt securities ("Debt Securities"), (ii) FPL
Group's Guarantee relating to the Debt Securities, (iii) [(2)shares
of] FPL Group's [(2)common stock, $.01 par value (the "Common Stock"),
and the preferred share purchase rights attached thereto (the
"Rights") (collectively referred to as the "Shares")] [(3)Shares],
(iv) contracts to purchase Shares or other agreements or instruments
requiring FPL Group to issue Shares (collectively, "Stock Purchase
Contracts"), and (v) units, each representing ownership of a Stock
Purchase Contract and either Debt Securities or debt securities of
third parties, including U.S. Treasury securities ("Stock Purchase
Units"). Such registration statement has been declared effective by
the Commission and no stop order suspending such effectiveness has
been issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
FPL Group Capital, threatened by the Commission. All but $662,550,000
aggregate amount of securities registered with the Commission under
the Securities Act pursuant to Registration Statement Nos. 333-85218
and 000-00000-00 have been previously issued. FPL Group Capital has
also, together with FPL Group, filed with the Commission a joint
registration statement on Form S-3, including a prospectus
("Registration Statement Nos. 333-_____ and 333-_____-01"), for
registration under the Securities Act of $1,337,450,000 aggregate
amount of (i) FPL Group Capital's Debt Securities, (ii) FPL Group's
Guarantee relating to the Debt Securities, (iii) FPL Group's Shares,
(iv) Stock Purchase Contracts and (v) Stock Purchase Units. References
herein to the term "Registration Statement" as of any given date shall
3
mean Registration Statement Nos. 333-85218 and 000-00000-00 and
Registration Statement Nos. 333-_____ and 333-_____-01 each as amended
or supplemented to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3
("Incorporated Documents"); provided that if FPL Group Capital files a
joint registration statement with FPL Group with the Commission
pursuant to Rule 462(b) under the Securities Act (the "Rule 462(b)
Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement. References herein to the term "Prospectus" as
of any given date shall mean the combined prospectus forming a part of
Registration Statement Nos. 333-_____ and 333-_____-01, as
supplemented by a prospectus supplement relating to the Securities
proposed to be filed pursuant to Rule 424 of the general rules and
regulations of the Securities Act ("Rule 424"), and as further amended
or supplemented as of such date (other than amendments or supplements
relating to (i) securities other than the Securities or (ii) when
referring to the Prospectus relating to a particular offering of the
Securities, Securities other than the Securities being offered on such
date), including all Incorporated Documents. References herein to the
term "Effective Date" shall be deemed to refer to the later of the
time and date that Registration Statement Nos. 333-_____ and
333-_____-01 was declared effective and the time and date of the
filing thereafter of FPL Group's most recent Annual Report on Form
10-K, if such filing is made prior to the Closing Date (as hereinafter
defined). Prior to the termination of the offering of the Securities,
FPL Group Capital will not file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus without
prior notice to the Representatives and to Hunton & Xxxxxxxx, 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.
(b) The Registration Statement at the Effective Date fully
complied, and the Prospectus, both on the date it is filed with the
Commission pursuant to Rule 424 (such date, the "424 Date") and at the
Closing Date, and the Registration Statement and the Indenture at the
Closing Date, will fully comply, in all material respects with the
applicable provisions of the Securities Act and the Trust Indenture
Act of 1939, as amended (the "1939 Act"), respectively, and, in each
case, the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement, at the Effective
Date, did not, and at the Closing Date, the Registration Statement
will not, contain any untrue statement of a material fact, or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus, on the 424
Date and at the Closing Date, will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; provided,
that the foregoing representations and warranties in this subsection
(b) shall not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to FPL Group
or FPL Group Capital by or on behalf of any Underwriter through the
Representatives expressly for use in connection with the preparation
of the Registration Statement or the Prospectus, or to any statements
in or omissions from the Statements of Eligibility on Form T-1, or
amendments thereto, of the respective Trustees under the Indenture and
the Guarantee Agreement and of the Purchase Contract Agent under the
4
Purchase Contract Agreement or to any statements or omissions made in
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.
(c) The execution and delivery of this agreement, the
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled have been duly authorized by all necessary corporate action
of FPL Group Capital in accordance with the provisions of its Articles
of Incorporation (the "FPL Group Capital Charter"), by-laws and
applicable law, and the FPL Group Capital Debentures when issued and
delivered as provided herein will constitute valid and binding
obligations of FPL Group Capital enforceable in accordance with their
terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting
creditors' rights and remedies generally and general principles of
equity. Neither the execution and delivery of the FPL Group Capital
Debentures nor the performance by FPL Group Capital of its obligations
thereunder requires any consent, approval, authorization, registration
or qualification of or by any governmental agency or body other than
those consents, approvals, authorizations, registrations or
qualifications as have already been obtained.
(d) The execution and delivery of this agreement, the
consummation of the transactions herein contemplated, the fulfillment
of the terms hereof and the compliance by FPL Group Capital with all
the terms and provisions of the Indenture will not result in a breach
of any of the terms or provisions of, or constitute a default under,
the FPL Group Capital Charter or by-laws, or any indenture, mortgage,
deed of trust or other agreement or instrument to which FPL Group
Capital is now a party, or violate any law or any order, rule, decree
or regulation applicable to FPL Group Capital of any federal or state
court, regulatory board or body or administrative agency having
jurisdiction over FPL Group Capital or any of its property, except
where such breach, default or violation would not have a material
adverse effect on the business, properties or financial condition of
FPL Group Capital and its subsidiaries taken as a whole.
(e) FPL Group Capital and each of its direct significant
subsidiaries (as defined in Regulation S-X (17 CFR Part 210)) have
good and marketable title to all of the capital stock or other
ownership interests of their respective direct significant
subsidiaries (as defined in Regulation S-X) free and clear of all
liens and encumbrances, except such as do not materially affect the
value thereof.
(f) FPL Group Capital and each of its direct and indirect
significant subsidiaries (as defined in Regulation S-X) has been duly
organized, is validly existing and is in good standing under the laws
of its respective jurisdiction of organization, and is duly qualified
to do business and is in good standing as a foreign corporation or
other entity in each jurisdiction in which its respective ownership of
properties or the conduct of its respective businesses requires such
qualification, except where the failure so to qualify would not have a
material adverse effect on the business, properties or financial
condition of FPL Group Capital and its subsidiaries taken as a whole,
5
and has the power and authority as a corporation or other entity
necessary to own or hold its respective properties and to conduct the
businesses in which it is engaged.
(g) The FPL Group Capital Debentures conform in all material
respects to the description thereof in the Prospectus.
(h) The Indenture (i) has been duly authorized by all
necessary corporate action, has been duly executed and delivered, and
is a valid and binding instrument enforceable in accordance with its
terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting
creditors' rights and remedies generally and general principles of
equity and (ii) conforms in all material respects to the description
thereof in the Prospectus.]
4. Representations and Warranties of FPL Group. FPL Group represents
and warrants to the several Underwriters that:
(a) FPL Group has, together with FPL Group Capital [(1)Inc, a
Florida corporation ("FPL Group Capital") and a wholly-owned
subsidiary of FPL Group], filed with the [(1)Securities and Exchange
Commission (the "Commission")] [(2,3)the Commission] [(1) a joint
registration statement on Form S-3, including a prospectus ("]
Registration Statement Nos. 333-85218 and 000-00000-00 [(1)")] for the
registration under the Securities Act [(1)of 1933, as amended (the
"Securities Act"),] of $2,000,000,000 aggregate amount of (i) FPL
Group Capital's [(1)unsecured debt securities ("Debt Securities")]
[(2,3)Debt Securities], (ii) FPL Group's [(1)guarantee relating to the
Debt Securities ("Guarantee")] [(2,3)Guarantee], (iii) FPL Group's
Shares, (iv) [(1)contracts to purchase Shares or other agreements or
instruments requiring FPL Group to issue Shares (collectively, "Stock
Purchase Contracts")] [(2,3)Stock Purchase Contracts], and (v)
[(1)units, each representing ownership of a Stock Purchase Contract
and either Debt Securities or debt securities of third parties,
including U.S. Treasury securities ("Stock Purchase Units")]
[(2,3)Stock Purchase Units]. Such registration statement has been
declared effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of FPL Group, threatened by the Commission. All but
$662,550,000 aggregate amount of securities registered with the
Commission under the Securities Act pursuant to Registration Statement
Nos. 333-85218 and 000-00000-00 have been previously issued. FPL Group
has also, together with FPL Group Capital, filed with the Commission
[(1)a joint registration statement on Form S-3, including a prospectus
("] Registration Statement Nos. 333-_____ and 333-_____-01 [(1)")],
for registration under the Securities Act of $1,337,450,000 aggregate
amount of (i) FPL Group Capital's Debt Securities, (ii) FPL Group's
Guarantee, (iii) FPL Group's Shares, (iv) Stock Purchase Contracts and
(v) Stock Purchase Units. [(1)References herein to the term
"Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-85218 and 000-00000-00 and Registration Statement
Nos. 333-_____ and 333-_____-01, each as amended or supplemented to
such date, including all documents incorporated by reference therein
as of such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"); provided that if FPL Group files a registration statement
with the Commission pursuant to Rule 462(b) under the Securities Act
(the "Rule 462(b) Registration Statement"), then after such filing,
6
all references to "Registration Statement" shall be deemed to include
the Rule 462(b) Registration Statement. References herein to the term
"Prospectus" as of any given date shall mean the combined prospectus
forming a part of Registration Statement Nos. 333-_____ and
333-_____-01, as supplemented by a prospectus supplement relating to
the Securities proposed to be filed pursuant to Rule 424 of the
general rules and regulations of the Securities Act ("Rule 424"), and
as further amended or supplemented as of such date (other than
amendments or supplements relating to (i) securities other than the
Securities or (ii) when referring to the Prospectus relating to a
particular offering of the Securities, Securities other than the
Securities being offered on such date), including all Incorporated
Documents. References herein to the term "Effective Date" shall be
deemed to refer to the later of the time and date that Registration
Statement Nos. 333-_____ and 333-_____-01 was declared effective and
the time and date of the filing thereafter of FPL Group's most recent
Annual Report on Form 10-K, if such filing is made prior to the
Closing Date (as hereinafter defined).] Prior to the termination of
the offering of the Securities, FPL Group will not file any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus without prior notice to the Representatives and to
[(1)Hunton & Xxxxxxxx, who are acting as counsel for the Underwriters
("Counsel for the Underwriters")] [(2,3)Counsel for the Underwriters],
or any such amendment or supplement to which the Representatives shall
reasonably object in writing, or which shall be unsatisfactory to
Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date fully
complied, and the Prospectus, both on the [(1)date it is filed with
the Commission pursuant to Rule 424 (such date, the "424 Date")]
[(2,3)424 Date] and at the Closing Date, and the Registration
Statement [(2)and the Guarantee Agreement] [(3), the Guarantee
Agreement and the Purchase Contract Agreement] at the Closing Date,
will fully comply, in all material respects with the applicable
provisions of the Securities Act [(2,3)and the 1939 Act,
respectively,] and [(2,3), in each case,] the applicable instructions,
rules and regulations of the Commission thereunder; the Registration
Statement, at the Effective Date, did not, and at the Closing Date,
the Registration Statement will not, contain any untrue statement of a
material fact, or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
the Prospectus, on the 424 Date and at the Closing Date, will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were made,
not misleading; and the Incorporated Documents, when filed with the
Commission, fully complied or will fully comply in all material
respects with the applicable provisions of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the applicable
instructions, rules and regulations of the Commission thereunder;
provided, that the foregoing representations and warranties in this
subsection (b) shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing
to FPL Group [(2,3)or FPL Group Capital] by or on behalf of any
Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or the
Prospectus, or to any statements in or omissions from the Statements
of Eligibility on Form T-1, or amendments thereto, of the respective
Trustees under [(1)that certain Indenture, dated as of June 1, 1999,
between FPL Group Capital and The Bank of New York, as Trustee (the
7
"Indenture") and that certain Guarantee Agreement, dated as of June 1,
1999, between FPL Group, as Guarantor, and The Bank of New York, as
Guarantee Trustee (the "Guarantee Agreement") and of the Purchase
Contract Agent under that certain Purchase Contract Agreement, dated
as of ________, 2002, between FPL Group and The Bank of New York, as
Purchase Contract Agent and Trustee (the "Purchase Contract
Agreement")] [(2,3)the Indenture and the Guarantee Agreement and of
the Purchase Contract Agent under the Purchase Contract Agreement] or
to any statements or omissions made in the Registration Statement or
Prospectus relating to [(1)The Depository Trust Company ("DTC")]
[(2,3)the DTC] Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(c) The financial statements included as part of or
incorporated by reference in the Registration Statement present fairly
the consolidated financial condition and results of operations of FPL
Group and its 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
Registration Statement; and Deloitte & Touche LLP, who have audited
the audited financial statements of FPL Group, are independent public
accountants as required by the Securities Act and the Exchange Act and
the rules and regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective most
recent dates as of which information is given in the Registration
Statement and Prospectus, there has not been any material adverse
change in the business, properties or financial condition of FPL Group
and its subsidiaries taken as a whole, whether or not in the ordinary
course of business, nor has any transaction been entered into by FPL
Group or any of its subsidiaries that is material to FPL Group and its
subsidiaries taken as a whole, other than changes and transactions
contemplated by the Registration Statement and Prospectus, and
transactions in the ordinary course of business. FPL Group and its
subsidiaries have no contingent obligation material to FPL Group and
its subsidiaries taken as a whole, which is not disclosed in or
contemplated by the Registration Statement and Prospectus.
(e) The execution and delivery of this agreement, the
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group to be
fulfilled have been duly authorized by all necessary corporate action
of FPL Group in accordance with the provisions of its Restated
Articles of Incorporation (the "FPL Group Charter"), by-laws and
applicable law[(2,3), and the Guarantee when issued and delivered as
provided herein will constitute a valid and binding obligation of FPL
Group enforceable in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies
generally and general principles of equity. Neither the execution and
delivery of the Guarantee Agreement required, nor the performance by
FPL Group of its obligations thereunder with respect to the FPL Group
Capital Debentures requires, any consent, approval, authorization,
registration or qualification of or by any governmental agency or body
8
other than those consents, approvals, authorizations, registrations or
qualifications as have already been obtained].
(f) The execution and delivery of this agreement, the
consummation of the transactions herein contemplated[(1)and] [(2,3),]
the fulfillment of the terms hereof [(2,3)and the compliance by FPL
Group with all the terms and provisions of the Guarantee Agreement]
will not result in a breach of any of the terms or provisions of, or
constitute a default under, the FPL Group Charter or by-laws, or any
indenture, mortgage, deed of trust or other agreement or instrument to
which FPL Group or any of its subsidiaries is now a party, or violate
any law or any order, rule, decree or regulation applicable to FPL
Group or any of its subsidiaries of any federal or state court,
regulatory board or body or administrative agency having jurisdiction
over FPL Group or its subsidiaries or any of their respective
property, except where such breach, default or violation would not
have a material adverse effect on the business, properties or
financial condition of FPL Group and its subsidiaries taken as a
whole.
(g) FPL Group and each of its direct significant
subsidiaries (as defined in Regulation S-X[(1)(17 CFR Part 210))] have
good and marketable title to all of the capital stock or other
ownership interests of their respective direct significant
subsidiaries (as defined in Regulation S-X) free and clear of all
liens and encumbrances, except such as do not materially affect the
value thereof.
(h) FPL Group and each of FPL Group's direct and indirect
significant subsidiaries (as defined in Regulation S-X) has been duly
organized, is validly existing and is in good standing under the laws
of its respective jurisdiction of organization, and is duly qualified
to do business and is in good standing as a foreign corporation or
other entity in each jurisdiction in which its respective ownership of
properties or the conduct of its respective businesses requires such
qualification, except where the failure so to qualify would not have a
material adverse effect on the business, properties or financial
condition of FPL Group and its subsidiaries taken as a whole, and has
the power and authority as a corporation or other entity necessary to
own or hold its respective properties and to conduct the businesses in
which it is engaged.
(i) [(2,3)The Guarantee Agreement (i) has been duly authorized
by all necessary corporate action, has been duly executed and
delivered, and is a valid and binding instrument enforceable in
accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and
general principles of equity and (ii) conforms in all material
respects to the description thereof in the Prospectus.]
(j) [(3)Each of the Purchase Contract Agreement, the Pledge
Agreement and the Purchase Contracts forming a part of the Securities,
(i) has been authorized by all necessary corporate action on the part
of FPL Group and, when duly executed and delivered as provided herein,
will constitute a valid and binding obligation of FPL Group
enforceable in accordance with their respective terms, except as
limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights and
remedies generally and general principles of equity and, with respect
9
to the Pledge Agreement, subject to any principles of public policy
limiting the rights to enforce the indemnification and exculpation
provisions contained therein and (ii) conforms in all material
respects to the description thereof in the Prospectus.]
(k) [(1)The Common Stock has been validly authorized and, when
issued and delivered by FPL Group against payment therefor in
accordance with the provisions of this agreement, will be fully paid
and non-assessable] [(3)The Common Stock issuable pursuant to the
Purchase Contracts forming a part of the Securities has been validly
authorized and reserved for issuance and, when issued and delivered by
FPL Group against payment therefor in accordance with the provisions
of the Purchase Contract Agreement, the Purchase Contracts and the
Pledge Agreement, will be fully paid and non-assessable] [(1,3)and the
related Rights, if any, when issued in accordance with the Rights
Agreement [(3), dated as of July 1, 1996, between FPL Group and
EquiServe Trust Company, N.A. (as successor to Fleet National Bank,
formerly known as The First National Bank of Boston), as Rights Agent,
as amended by an Amendment to Rights Agreement, dated as of July 30,
2000 ("Rights Agreement"),] will be validly issued subject to the
terms of the Rights Agreement.]
(l) FPL Group is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
5. Purchase and Sale. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions in this
agreement, FPL Group [(2,3)and FPL Group Capital agree] [(1)agrees] to sell to
the respective Underwriters named in Schedule II hereto, severally and not
jointly, and the respective Underwriters agree, severally and not jointly, to
purchase from FPL Group [(2,3)and FPL Group Capital] the respective
[(1,3)number] [(2)principal amounts] of Securities set forth opposite their
respective names in Schedule II hereto at the purchase price[s] for those
Securities set forth in Schedule I hereto.
[(1,3)The Underwriters agree to make a bona fide public offering of
the Securities. The Underwriters have advised FPL Group that the Securities
will be offered to the public at $___ per [(1)share] [(3)Corporate Unit] and to
certain dealers selected by the Representatives at a price which represents a
concession not in excess of $____ per [(1)share] [(3)Corporate Unit] under the
public offering price.]
[(2)The Underwriters agree to make a bona fide public offering of the
FPL Group Capital Debentures and the Guarantee as set forth in the Prospectus,
such public offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.]
[(3)The FPL Group Capital Debentures constituting a part of the
Corporate Units will be pledged, together with other collateral, to the
Collateral Agent to secure the holders' obligations to purchase Shares under the
Purchase Contracts. Such pledge shall be effected by delivery to the Collateral
Agent of the FPL Group Capital Debentures to be pledged in certificated form
endorsed in blank, at the Closing Date in accordance with the Pledge Agreement.]
10
6. Time, Date and Place of Closing, Default of Underwriter. Delivery
of the Securities [of each series] and payment therefor by wire transfer in
federal funds [(3), and against delivery to the Collateral Agent of the FPL
Group Capital Debentures constituting a part of the Corporate Units,] shall be
made at the time, date and place set forth in Schedule I hereto, or at such
other time, date or place as may be agreed upon in writing by [(1,3)FPL
Group[,]] [(2,3)FPL Group Capital] and the Representatives. The time and date of
such delivery and payment are herein called the "Closing Date."
The Securities shall be delivered to the Representatives for the
respective accounts of the Underwriters against payment by the several
Underwriters through the Representatives of the purchase price therefor.
Delivery of the Securities shall be made through the facilities of DTC unless
the Representatives and [(1)FPL Group] [(2)FPL Group Capital] [(3)FPL Group and
FPL Group Capital] shall otherwise agree. For the purpose of expediting the
checking of the Securities [(3)and the related FPL Group Capital Debentures] by
the Representatives on behalf of the Underwriters, [(1,3)FPL Group] [(2)FPL
Group Capital] agrees to make such Securities [(3)and the related FPL Group
Capital Debentures] available to the Representatives for such purpose at the
offices of Xxxxxx Xxxx & Priest 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
[(1,3)FPL Group] [,] [(2,3) FPL Group Capital] and the Representatives.
If any Underwriter shall fail to purchase and pay for the
[(1,3)number] [(2)principal amount] of the Securities [of any series] which such
Underwriter has agreed to purchase and pay for hereunder (otherwise than by
reason of any failure on the part of FPL Group [(2,3)or FPL Group Capital] to
comply with any of the provisions contained herein), the non-defaulting
Underwriters shall be obligated to purchase and pay for (in addition to the
respective [(1,3)number] [(2)principal amount] of the Securities [of each
series] set forth opposite their respective names in Schedule II hereto) the
[(1,3)number] [(2)principal amount] of the Securities [of each series] which
such defaulting Underwriter or Underwriters failed to purchase and pay for, up
to a [(1,3)number] [(2)principal amount] thereof equal to, in the case of each
such remaining Underwriter, ten percent (10%) of the aggregate [(1,3)number]
[(2)principal amount] of the Securities [of each series as to which there is a
default and which are] set forth opposite the name of such remaining Underwriter
in said Schedule II, and such remaining Underwriters shall have the right,
within 24 hours of receipt of such notice, either to purchase and pay for (in
such proportion as may be agreed upon among them) the remaining [(1,3)number]
[(2)principal amount] of the Securities [of each series] which the defaulting
Underwriter or Underwriters agreed but failed to purchase, or to substitute
another Underwriter or Underwriters, satisfactory to [(1,3)FPL Group] [(2)FPL
Group Capital], to purchase and pay for the remaining [(1,3)number]
[(2)principal amount] of the Securities [of each series] which the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any of the
Securities would still remain unpurchased, then [(1,3)FPL Group] [(2)FPL Group
Capital] shall be entitled to a further period of 24 hours within which to
procure another party or other parties, members of the National Association of
Securities Dealers, Inc. (or, if not members of such Association, who are not
eligible for membership in said Association and who agree (i) to make no sales
within the United States, its territories or its possessions or to persons who
are citizens thereof or residents therein and (ii) in making sales to comply
with said Association's Conduct Rules) and satisfactory to the Representatives
to purchase such Securities on the terms herein set forth. In the event that,
within the respective prescribed periods, the non-defaulting Underwriters notify
11
[(1,3)FPL Group] [(2)FPL Group Capital] that they have arranged for the purchase
of such Securities or [(1,3)FPL Group] [(2)FPL Group Capital] notifies the
non-defaulting Underwriters that it has arranged for the purchase of such
Securities, the non-defaulting Underwriters or [(1,3)FPL Group] [(2)FPL Group
Capital] shall have the right to postpone the Closing Date for a period of not
more than three full business days beyond the expiration of the respective
prescribed periods in order to effect whatever changes may thus be made
necessary in the Registration Statement, the Prospectus or in any other
documents or arrangements. In the event that neither the non-defaulting
Underwriters nor [(1,3)FPL Group] [(2)FPL Group Capital] has arranged for the
purchase of such Securities by another party or parties as above provided, then
this agreement shall terminate without any liability on the part of FPL Group
[(2,3)or FPL Group Capital] or any Underwriter (other than an Underwriter which
shall have failed or refused, otherwise than for some reason sufficient to
justify, in accordance with the terms hereof, the cancellation or termination of
its obligations hereunder, to purchase and pay for the Securities which such
Underwriter has agreed to purchase as provided in Section [5] hereof), except as
otherwise provided in Section [10 and] subsections (c) and (e) of Section [7]
hereof.
7. Covenants of FPL Group [(2,3)and FPL Group Capital]. FPL Group
[(2,3)and FPL Group Capital] [(1)agrees] [(2,3)agree] with the several
Underwriters that:
(a) FPL Group [(2,3)and FPL Group Capital] will promptly file
the Prospectus with the Commission pursuant to Rule 424 under the
Securities Act.
(b) [(1,3)FPL Group] [(2)FPL Group Capital] will deliver to the
Representatives and to Counsel for the Underwriters one signed copy of
the Registration Statement or, if a signed copy is not available, one
conformed copy of the Registration Statement certified by an officer
of [(1,3)FPL Group] [(2)FPL Group Capital] to be in the form as
originally filed, including all Incorporated Documents and exhibits,
except those incorporated by reference, which relate to the
Securities, including a signed or conformed copy of each consent and
certificate included therein or filed as an exhibit thereto. As soon
as practicable after the date of this agreement, [(1,3)FPL Group]
[(2)FPL Group Capital] will deliver to the Underwriters through the
Representatives as many copies of the Prospectus as the
Representatives may reasonably request for the purposes contemplated
by the Securities Act.
(c) [(1,3)FPL Group] [(2)FPL Group Capital] will pay or cause to
be paid all expenses in connection with the (i) preparation and filing
of the Registration Statement and Prospectus, (ii) issuance and
delivery of the Securities as provided in Section [6] hereof, and
(iii) printing and delivery to the Representatives for the account of
the Underwriters, in reasonable quantities, of copies of the
Registration Statement [(1)and] [,] the Prospectus [(2)and the
Indenture] [(3), the Indenture, and the Purchase Contract Agreement].
[(1,3)FPL Group] [(2)FPL Group Capital] will pay or cause to be paid
all taxes, if any (but not including any transfer taxes), on the
issuance of the Securities. [(1,3)FPL Group] [(2)FPL Group Capital]
shall not, however, be required to pay any amount for any expenses of
the Representatives or any of the Underwriters, except as provided in
Sections [8] and [9] hereof and except that if this agreement shall be
terminated in accordance with the provisions of Sections [8], [9] [or]
[11] hereof, [(1,3)FPL Group] [(2)FPL Group Capital] will pay the fees
and disbursements of Counsel for the Underwriters, whose fees and
12
disbursements the Underwriters agree to pay in any other event.
[(2,3)Neither] FPL Group [(2,3)nor FPL Group Capital] shall [(1)not]
in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits.
(d) During a period of nine months after the date of this
agreement, if any event relating to or affecting FPL Group [(2,3)or
FPL Group Capital] shall occur which, in the opinion of FPL Group
[(2,3)or FPL Group Capital], should be set forth in a supplement to or
an amendment of the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered to a
purchaser, [(1,3)FPL Group] [(2)FPL Group Capital] will forthwith at
its expense prepare and furnish to the Representatives a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading; provided that should such event relate
solely to activities of any of the Underwriters, then the Underwriters
shall assume the expense of preparing and furnishing copies of any
such amendment or supplement. In case any Underwriter is required to
deliver a Prospectus after the expiration of nine months after the
date of this agreement, [(1,3)FPL Group] [(2)FPL Group Capital] upon
the request of the Representatives will furnish to the
Representatives, at the expense of such Underwriter, a reasonable
quantity of a supplemented or amended Prospectus or supplements or
amendments to the Prospectus complying with Section 10 of the
Securities Act.
(e) [(1,3)FPL Group] [(2)FPL Group Capital] will furnish such
proper information as may be lawfully required and otherwise cooperate
in qualifying the Securities for offer and sale under the blue sky
laws of such jurisdictions as the Representatives may designate and
will pay or cause to be paid filing fees and expenses (including fees
and expenses of counsel) in the aggregate not exceeding $5,000,
provided that [(2,3)neither] FPL Group [(2,3)nor FPL Group Capital]
shall [(1)not] be required to qualify as a foreign corporation or
dealer in securities, or to file any consents to service of process
under the laws of any jurisdiction, or to meet other requirements
deemed by FPL Group [(2,3)or FPL Group Capital] to be unduly
burdensome.
(f) FPL Group will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
its security holders (including holders of the Securities) as soon as
practicable an earnings statement (which need not be audited, unless
required so to be under Section 11(a) of the Securities Act) for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
(g) FPL Group [(2,3)and FPL Group Capital] will advise the
Representatives promptly of the filing of the Prospectus pursuant to
Rule 424 and of any amendment or supplement to the Prospectus or
Registration Statement or, prior to the termination of the offering of
the Securities hereunder, of official notice of the institution of
proceedings for, or the entry of, a stop order suspending the
effectiveness of the Registration Statement and, if such a stop order
13
should be entered, use every commercially reasonable effort to obtain
the prompt removal thereof.
8. Conditions of Underwriters' Obligations to Purchase and Pay for
the Securities. The several obligations of the Underwriters to purchase and pay
for the Securities shall be subject to the performance by FPL Group [(2,3)and
FPL Group Capital] of [(1)its] [(2,3)their] obligations to be performed
hereunder on or prior to the Closing Date and to the following conditions:
(a) The [(2,3)respective] representations and warranties made by
FPL Group [(2,3)and FPL Group Capital] herein shall be true and
correct in all material respects as of the Closing Date as if made on
and as of such date and the Representatives shall have received, prior
to payment for the Securities, a certificate from [(2,3)each of] FPL
Group [(2,3)and FPL Group Capital] dated the Closing Date and signed
by an officer of FPL Group [(2,3)and FPL Group Capital, as the case
may be,] to that effect.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date; no
order of the Commission directed to the adequacy of any Incorporated
Document shall be in effect on the Closing Date; no proceedings for
either such purpose shall be pending before, or threatened by, the
Commission on such date; and the Representatives shall have received,
prior to payment for the Securities, a certificate from [(2,3)each of]
FPL Group [(2,3)and FPL Group Capital] dated the Closing Date and
signed by an officer of FPL Group [(2,3)and FPL Group Capital, as the
case may be,] to the effect that, to the best of their knowledge, no
such order is in effect and no proceedings for either such purpose are
pending before, or to the knowledge of FPL Group [(2,3)and FPL Group
Capital] threatened by, the Commission.
(c) On the Closing Date, the Representatives shall have
received from Steel Xxxxxx & Xxxxx LLP, counsel to FPL Group [(2,3)and
FPL Group Capital], Xxxxxx Xxxx & Priest LLP, co-counsel to FPL Group
[(2,3)and FPL Group Capital], and Hunton & Xxxxxxxx, Counsel for the
Underwriters, opinions (with a copy for each of the Underwriters) in
substantially the form and substance prescribed in Schedules III, IV
and V hereto (i) with such changes therein as may be agreed upon by
FPL Group [(2,3), FPL Group Capital] and the Representatives, with the
approval of Counsel for the Underwriters, and (ii) if the Prospectus
relating to the Securities shall be supplemented or amended after the
Prospectus shall have been filed with the Commission pursuant to Rule
424, with any changes therein necessary to reflect such
supplementation or amendment.
(d) At the Closing Date, the Representatives shall have
received from Deloitte & Touche LLP a letter (with copies thereof for
each of the Underwriters) to the effect that (i) they are independent
public accountants with respect to FPL Group within the meaning of the
Securities Act and the Exchange Act and the applicable published rules
and regulations thereunder; (ii) in their opinion, the consolidated
financial statements of FPL Group audited by them and incorporated by
reference in the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and
the Exchange Act and the published rules and regulations thereunder;
(iii) on the basis of performing a review of interim financial
14
information as described in Statement on Auditing Standards No. 71,
Interim Financial Information, on the unaudited condensed consolidated
financial statements of FPL Group incorporated by reference in the
Prospectus, a reading of the latest available interim unaudited
condensed consolidated financial statements of FPL Group since the
close of FPL Group's most recent audited fiscal year, the minutes and
consents of the Board of Directors and the Finance Committee of the
Board of Directors and shareholders of FPL Group since the end of the
most recent audited fiscal year, and inquiries of officials of FPL
Group who have responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not constitute an
audit made in accordance with generally accepted auditing standards
and they would not necessarily reveal matters of significance with
respect to the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the sufficiency of
such procedures for the several Underwriters' purposes), nothing has
come to their attention which caused them to believe that (a) the
unaudited condensed consolidated financial statements of FPL Group
incorporated by reference in the Prospectus (1) do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the
published rules and regulations thereunder and (2) except as disclosed
in the Prospectus, are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements of FPL Group
incorporated by reference in the Prospectus, (b) at the date of the
latest available interim balance sheet read by them and at a specified
date not more than five days prior to the Closing Date there was any
change in the capital stock or long-term debt of FPL Group and its
subsidiaries, or decrease in their consolidated net assets, in each
case as compared with amounts shown in the most recent consolidated
balance sheet incorporated by reference in the Prospectus, except in
all instances for changes, increases or decreases which the Prospectus
discloses have occurred or may occur, or as occasioned by the
declaration, provision for, or payment of dividends, or as occasioned
by the sale of common stock pursuant to any employee or director
benefit or compensation plan or the dividend reinvestment plan or the
repurchase of common stock by FPL Group or which are described in such
letter, or (c) for the period from the date of the most recent
condensed consolidated balance sheet incorporated by reference in the
Prospectus to the latest available interim balance sheet read by them
and for the period from the date of the latest available interim
balance sheet read by them to a specified date not more than five days
prior to the Closing Date, there were any decreases, as compared with
the corresponding period in the preceding year, in total consolidated
operating revenues or in net income, except in all instances for
decreases which the Prospectus discloses have occurred or may occur,
or which are described in such letter; and (iv) they have carried out
certain procedures and made certain findings, as specified in such
letter, with respect to certain amounts included in the Prospectus and
Exhibit 12 to the Registration Statement and such other items as the
Representatives may reasonably request.
(e) Since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, and
up to the Closing Date, (i) there shall have been no material adverse
change in the business, properties or financial condition of [(2,3)(a)
FPL Group Capital and its subsidiaries taken as a whole or (b)] FPL
Group and its subsidiaries taken as a whole, except [(2,3)in each
15
case] as disclosed in or contemplated by the Registration Statement
and Prospectus, and (ii) there shall have been no material transaction
entered into by [(2,3)(a) FPL Group Capital or any of its subsidiaries
that is material to FPL Group Capital and its subsidiaries taken as a
whole or (b)] FPL Group or any of its subsidiaries that is material to
FPL Group and its subsidiaries taken as a whole, [(2,3)in each case]
other than transactions disclosed in or contemplated by the
Registration Statement and the Prospectus, and transactions in the
ordinary course of business; and at the Closing Date, the
Representatives shall have received a certificate to such effect from
[(2,3)each of FPL Group Capital and] FPL Group signed by an officer of
[(2,3)FPL Group Capital or] FPL Group[(2,3), as the case may be].
(f) All legal proceedings to be taken in connection with the
issuance and sale of the Securities shall have been satisfactory in
form and substance to Counsel for the Underwriters.
(g) [(1)The Securities] [(3)The Corporate Units constituting the
Securities shall have been approved for listing on The New York Stock
Exchange, Inc. ("NYSE") upon official notice of issuance and the
Shares issuable under the Purchase Contracts constituting a part of
the Securities] [(1,3)shall have been approved for listing on [(1)The
New York Stock Exchange, Inc. ("NYSE")] [(3)the NYSE] upon official
notice of issuance.]
In case any of the conditions specified above in this Section [8]
shall not have been fulfilled, this agreement may be terminated by the
Representatives upon mailing or delivering written notice thereof to FPL Group
[(2,3)and FPL Group Capital]. Any such termination shall be without liability of
any party to any other party except as otherwise provided in subsections (c) and
(e) of Section [7] hereof and except that in the event of such termination by
the Representatives, FPL Group [(2,3)and FPL Group Capital] shall reimburse the
Underwriters for out-of-pocket expenses reasonably incurred by them in
connection with the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
9. Condition of FPL Group's [(2,3)and FPL Group Capital's]
Obligations. The [(1)obligation] [(2,3)obligations] of FPL Group [(2,3)and FPL
Group Capital] to deliver the Securities shall be subject to the following
condition:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date; no
order of the Commission directed to the adequacy of any Incorporated
Document shall be in effect on the Closing Date;, and no proceedings
for either such purpose shall be pending before, or threatened by, the
Commission on such date.
In case the condition specified above in this Section [9] shall not
have been fulfilled, this agreement may be terminated by FPL Group [(2,3)and FPL
Group Capital] upon mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in subsections (c) and (e) of
Section [7] hereof and except that in the event of such termination by FPL Group
[(2,3)and FPL Group Capital], FPL Group [(2,3)and FPL Group Capital] shall
reimburse the Underwriters for out-of-pocket expenses reasonably incurred by
16
them in connection with the transactions contemplated by this agreement, not in
excess, however, of an aggregate of $5,000.
10. Indemnification.
(a) FPL Group [(2,3)and FPL Group Capital, jointly and
severally, agree] [(1)agrees] to indemnify and hold harmless each
Underwriter, each officer and director of each Underwriter and each
person who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act
or any other statute or common law and to reimburse each such
Underwriter, officer, director and controlling person for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) when and as incurred by them in connection
with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus [(if used prior
to the Effective Date of the Registration Statement)], including all
Incorporated Documents, or in the Registration Statement or the
Prospectus, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnity agreement contained in this subsection (a) of Section [10]
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished in writing, to FPL Group
[(2,3)or FPL Group Capital] by or on behalf of any Underwriter,
through the Representatives, expressly for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or arising out of, or based
upon, statements in or omissions from the Statements of Eligibility on
Form T-1 of the respective Trustees under the Indenture and the
Guarantee Agreement and of the Purchase Contract Agent under the
Purchase Contract Agreement; and provided, further, that the indemnity
agreement contained in this subsection (a) of Section [10] in
respect of any preliminary prospectus (and for purposes of clause (ii)
below, the Prospectus) shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Securities [of any series] to any person
if such Underwriter shall have failed to send or give to such person
(i) with or prior to the written confirmation of such sale, a copy of
the Prospectus or the Prospectus as amended or supplemented, if any
amendments or supplements thereto shall have been furnished at or
prior to the time of written confirmation of the sale involved, but
exclusive of any Incorporated Documents, unless the alleged omission
or alleged untrue statement with respect to such preliminary
prospectus is not corrected in the Prospectus or the Prospectus as
amended or supplemented at the time of confirmation, or (ii) with or
prior to the delivery of such Securities to such person, a copy of any
amendment or supplement to the Prospectus which shall have been
furnished subsequent to such written confirmation and prior to the
delivery of such Securities to such person, but exclusive of any
17
Incorporated Documents, unless the alleged omission or alleged untrue
statement with respect to such preliminary prospectus or the
Prospectus was not corrected in the Prospectus or in such amendment or
supplement at the time of such delivery of such Securities. The
indemnity agreement of FPL Group [(2,3)and FPL Group Capital]
contained in this subsection (a) of Section [10] and the
representations and warranties of FPL Group [(2,3)and FPL Group
Capital] contained in [(1)Section 3] [(2,3)Sections [3] and [4]]
hereof, [(2,3)respectively,] shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of
any Underwriter, officer, director or any such controlling person, and
shall survive the delivery of the Securities [of each series]. The
Underwriters agree promptly to notify [(2,3)each of] FPL Group
[(2,3)and FPL Group Capital], and each other Underwriter, of the
commencement of any litigation or proceedings against them or any of
them or any such officer, director or controlling person in connection
with the issuance and sale of the Securities [of any series].
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless [(2,3)each of] FPL Group [(2,3)and FPL
Group Capital], [(1)its] [(2,3)their respective] officers and
directors, and each person who controls FPL Group [(2,3)or FPL Group
Capital, as the case may be] within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or any
other statute or common law, and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) when and as incurred by them in
connection with investigating any such losses, claims, damages or
liabilities, or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
or the Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading if such statement or
omission was made in reliance upon and in conformity with information
furnished in writing, to FPL Group [(2,3)or FPL Group Capital] by or
on behalf of such Underwriter, through the Representatives, expressly
for use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement to either
thereof. The Underwriters hereby furnish to FPL Group [(2,3)and FPL
Group Capital] in writing expressly for use in the Registration
Statement and Prospectus [insert information provided by the
Underwriters]. FPL Group [(2,3)and FPL Group Capital each acknowledge]
[(1)acknowledges] that the statements set forth in the preceding
sentence constitute the only information furnished in writing by or on
behalf of the several Underwriters expressly for inclusion in any
preliminary prospectus or the Prospectus. The indemnity agreement of
the respective Underwriters contained in this subsection (b) of
Section [10] shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of FPL Group
[(2,3), FPL Group Capital] or any of [(1)its] [(2,3)their respective]
officers or directors or any such other Underwriter or any such
controlling person, and
18
shall survive the delivery of the Securities [of each series]. FPL
Group [(2,3)and FPL Group Capital agree] [(1)agrees] promptly to
notify the Representatives of the commencement of any litigation or
proceedings against FPL Group [(2,3), FPL Group Capital] (or any
controlling person [(2,3)of either] thereof) or any of [(1)its]
[(2,3)their respective] officers or directors in connection with the
issuance and sale of the Securities [of any series].
(c) FPL Group [(2,3), FPL Group Capital] and the several
Underwriters each agree that, upon the receipt of notice of the
commencement of any action against it, its officers and directors, or
any person controlling it as aforesaid, in respect of which indemnity
or contribution may be sought under the provisions of this Section
[10], it will promptly give written notice of the commencement thereof
to the party or parties against whom indemnity or contribution shall
be sought thereunder, but the omission so to notify such indemnifying
party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may
have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be
so given, such indemnifying party or parties shall be entitled to
participate at its own expense in the defense or, if it so elects, to
assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted
by counsel chosen by such indemnifying party or parties and reasonably
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional counsel
retained by them; but if [(1)the] [(2,3)an] 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 in the representation by such counsel of both the
indemnifying party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel, satisfactory
to the indemnifying party or parties, to participate in the defense of
such action on behalf of such indemnified party or parties at the
expense of the indemnifying party or parties (it being understood,
however, that the indemnifying party or parties shall not be liable
for the expenses of more than one separate counsel representing the
indemnified parties who are parties to such action). FPL Group [(2,3),
FPL Group Capital] and the several Underwriters each agree that
without the prior written consent of the other parties to such action
who are parties to this agreement, which consent shall not be
unreasonably withheld, it will not settle, compromise or consent to
the entry of any judgment in any claim or proceeding in respect of
which such party intends to seek indemnity or contribution under the
provisions of this Section [10], unless such settlement, compromise or
consent (i) includes an unconditional release of such other parties
from all liability arising out of such claim or proceeding and (ii)
does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of such other parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable
law by an indemnified party, each indemnifying party agrees to
contribute to such indemnified party with respect to any and all
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subsections (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative fault of FPL Group [(2,3)and FPL Group Capital] on
19
the one hand and the Underwriters on the other in connection with the
statements or omissions which have resulted in such losses, claims,
damages, liabilities and expenses, (ii) the relative benefits received
by FPL Group [(2,3)and FPL Group Capital] on the one hand and the
Underwriters on the other hand from the offering of the Securities
pursuant to this agreement, and (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution with respect
thereto from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by FPL Group [(2,3)and
FPL Group Capital] or the Underwriters and each such party's relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. FPL Group [(2,3), FPL Group
Capital] and each of the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were to
be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute in excess of the
amount equal to the excess of (i) the total price at which the
Securities underwritten by it were offered to the public, over (ii)
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission. The obligations of each
Underwriter to contribute pursuant to this subsection (d) are several
and not joint and shall be in the same proportion as such
Underwriter's obligation to underwrite Securities is to the total
amount of Securities set forth in Schedule II hereto.
11. Termination. This agreement may be terminated by the
Representatives by delivering written notice thereof to [(1,3)FPL Group] [(2)FPL
Group Capital], at any time prior to the Closing Date if after the date hereof
and at or prior to the Closing Date:
(a) (i) there shall have occurred any general suspension of
trading in securities on [(2)The New York Stock Exchange, Inc. (the
"NYSE")] [(1,3)the NYSE] or there shall have been established by the
NYSE or by the Commission or by any federal or state agency or by the
decision of any court any limitation on prices for such trading or any
general restrictions on the distribution of securities, or trading in
any securities of FPL Group [(2,3)or FPL Group Capital] shall have
been suspended or limited by any exchange located in the United States
or on the over-the-counter market located in the United States or a
general banking moratorium declared by New York or federal authorities
or (ii) there shall have occurred any new material 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
Underwriters to enforce contracts for the sale of the Securities [of
any series] [(2,3); or
(b) (i) there shall have been any downgrading or any notice
of any intended or potential downgrading in the ratings accorded to
the FPL Group Capital Debentures or any securities of FPL Group
20
Capital which are of the same class as the FPL Group Capital
Debentures by either [Xxxxx'x Investor Service, Inc. ("Moody's")] or
[Standard & Poor's Ratings Services, a division of XxXxxx-Xxxx
Companies, Inc. ("S&P")], or (ii) either [Moody's] or [S&P] shall have
publicly announced that either has under surveillance or review, with
possible negative implications, its ratings of the FPL Group Capital
Debentures or any securities of FPL Group Capital which are of the
same class as the FPL Group Capital Debentures, the effect of any such
event specified in (i) or (ii) above which, in the reasonable judgment
of the Representatives, makes it impracticable or inadvisable to
consummate the sale of the Securities and the delivery of the
Securities by the several Underwriters at the initial public offering
price].
This agreement may also be terminated at any time prior to the Closing Date if
in the judgment of the Representatives the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus prepared and
furnished by FPL Group [(2,3)and FPL Group Capital] after the date hereof
reflects a material adverse change in the business, properties or financial
condition of FPL Group and its subsidiaries taken as a whole [(2,3)or FPL Group
Capital and its subsidiaries taken as a whole] which renders it either
inadvisable to proceed with such offering, if any, or inadvisable to proceed
with the delivery of the Securities [of any series] to be purchased hereunder.
Any termination of this agreement pursuant to this Section [11] shall be without
liability of any party to any other party except as otherwise provided in
subsections (c) and (e) of Section [7] hereof.
12. Miscellaneous. The validity and interpretation of this agreement
shall be governed by the laws of the State of New York. This agreement shall
inure to the benefit of FPL Group [(2,3), FPL Group Capital], the several
Underwriters and, with respect to the provisions of Section [10] hereof, each
officer, director or controlling person referred to in said Section [10], and
their respective successors. Nothing in this agreement is intended or shall be
construed to give to any other person or entity any legal or equitable right,
remedy or claim under or in respect of this agreement or any provision herein
contained. The term "successors" as used in this agreement shall not include any
purchaser, as such purchaser, of any Securities from any of the several
Underwriters.
13. Notices. All communications hereunder shall be in writing or by
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL
Group [(2,3)or FPL Group Capital], shall be mailed or delivered to it at 000
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Treasurer.
21
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
FPL Group, Inc.
By:
--------------------------------
Name:
Title:
[(2,3)FPL Group Capital Inc
By:
--------------------------------
Name:
Title:]
Accepted and delivered as of
the date first above written:
By:
----------------------------------------
Name:
Title:
Acting on their own behalf and on behalf of the other several Underwriters
referred to in the foregoing agreement.
22
SCHEDULE I
Underwriting Agreement dated __________________
Registration Statement Nos. 333-85218 and 000-00000-00
and Registration Statement Nos. 333-_____ and 333-_____-01
Representatives and Addresses:
Securities:
Designation:
[(1)Number of Shares]
[(2)Principal Amount]
[(3)Number of Units]
[(3)Aggregate Stated Amount]
[(2)Date of Maturity]
[(2)Interest Rate]
Underwriting Discount:
Public Offering Price:
Purchase Price:
Closing Date, Time and Location
SCHEDULE II
[(1,3)Number of Securities]
Underwriter [(2)Principal Amount of FPL Group Capital Debentures]
----------- -----------------------------------------------------
[names of Underwriters]
TOTAL
SCHEDULE III
[LETTERHEAD OF STEEL XXXXXX & XXXXX LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
[(1)We have acted as counsel to FPL Group, Inc. ("FPL Group") (a) in
connection with the authorization and issuance by FPL Group of __________ shares
of its common stock, $.01 par value ("Common Stock"), including the preferred
share purchase rights attached thereto (the "Rights") (collectively referred to
as the "Shares")] [(2)We have acted as counsel to FPL Group, Inc. ("FPL Group")
and FPL Group Capital Inc ("FPL Group Capital") (a) in connection with the
authorization and issuance by FPL Group Capital of $___________ aggregate
principal amount of its _____ Debentures, Series due ___________________ [(the
"____ Debentures") and $___________ aggregate principal of its ______
Debentures, Series due ___________________ (the "___ Debentures", together with
the ___ Debentures,] [("FPL Group Capital Debentures" or "Securities")], issued
under the Indenture (for Unsecured Debt Securities), dated as of June 1, 1999
(the "Indenture"), from FPL Group Capital to The Bank of New York, as Trustee,
which FPL Group Capital Debentures are absolutely, irrevocably and
unconditionally guaranteed (the "Guarantee") by FPL Group pursuant to that
Guarantee Agreement dated as of June 1, 1999 from FPL Group to The Bank of New
York, as Guarantee Trustee (the "Guarantee Agreement")] [(3)We have acted as
counsel to FPL Group, Inc. ("FPL Group") and FPL Group Capital Inc ("FPL Group
Capital") (a) in connection with the authorization and issuance by FPL Group of
its new securities ("Securities"), with such Securities consisting of ________
equity units of FPL Group, initially consisting of _______ of FPL Group's
corporate units ("Corporate Units"), and the authorization and issuance by FPL
Group Capital of certain of its debt securities in connection therewith] and (b)
in connection with the sale of the [(1)Shares] [(2,3)Securities] to you in
accordance with the Underwriting Agreement, dated as of ______________ (the
"Agreement"), [(1)between you and FPL Group] [(2,3)among you, FPL Group and FPL
Group Capital]. Capitalized terms used in this opinion but not defined shall
have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1)
Registration Statement Nos. 333-85218 and 000-00000-00 which became effective on
April 24, 2002, which registration statement was filed jointly by FPL Group and
FPL Group Capital [(1)Inc ("FPL Group Capital")] with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"); (2) Registration Statement Nos. 333-_____ and
333-_____-01 which became effective on ___________ which registration statement
was filed jointly by FPL Group and FPL Group Capital with the Commission under
the Securities Act (references herein to the term "Registration Statement" as of
any given date shall mean Registration Statement Nos. 333-85218 and 000-00000-00
and Registration Statement Nos. 333-_____ and 333-_____-01, each as amended and
supplemented to such date, including those documents incorporated by reference
therein as of such date pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents")); (3) the combined prospectus dated ___________
forming a part of Registration Statement Nos. 333-_____ and 333-_____-01, as
supplemented by a prospectus supplement dated ___________ relating to the
[(1)Shares] [(2,3)Securities], both such prospectus and prospectus supplement
filed pursuant to Rule 424(b) under the Securities Act ("Rule 424" and
references herein to the "Prospectus" as of any given date shall refer to such
prospectus, as supplemented by the prospectus supplement relating to the
Securities filed pursuant to Rule 424, and as further amended and supplemented
to such date, including the Incorporated Documents); [(2,3)(4) the Indenture;
(5) the Guarantee Agreement;] (6) the corporate proceedings of FPL Group with
respect to the Registration Statement [(2)and the Guarantee] [(3), the
Guarantee, the Pledge Agreement, the Purchase Contract Agreement and the
Remarketing Agreement]; (7) the corporate proceedings of FPL Group Capital with
respect to the Registration Statement [(2)and the FPL Group Capital Debentures];
[(3), the FPL Group Capital Debentures and the Remarketing Agreement]; (8) FPL
Group's Restated Articles of Incorporation as amended to the date hereof (the
"FPL Group Charter") and Bylaws as amended to the date hereof (the "FPL Group
Bylaws"); [(2,3)(9) FPL Group Capital's Articles of Incorporation as amended to
the date hereof (the "FPL Group Capital Charter") and Bylaws as amended to the
date hereof (the "FPL Group Capital Bylaws")]; [(3)(10) the Remarketing
Agreement; (11) the Pledge Agreement; (12) the Purchase Contract Agreement;]
[(1,3)(13) the Rights Agreement, dated as of July 1, 1996, between FPL Group and
EquiServe Trust Company, N.A. (as successor to Fleet National Bank, formerly
known as The First National Bank of Boston), as Rights Agent, as amended by an
Amendment to Rights Agreement, dated as of July 30, 2000 (the "Rights
Agreement"); (14) the corporate proceedings of FPL Group with respect to the
Rights Agreement and the Amendment to Rights Agreement;] and (15) such other
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purposes of this opinion.
[(1,3)We have also reviewed the relevant statutory provisions of the
Florida Business Corporation Act, as amended, such other legal authority in
Florida as we have deemed relevant and, because the issuance of the Rights
would, if challenged, present as to a Florida corporation a case of first
impression in the courts of Florida and because the issuance of interests such
as the Rights has to our knowledge yet to be the subject of any reported
appellate opinion of a Florida court, we have reviewed certain case law with
respect to the distribution of such rights in other jurisdictions.]
[(1,3)For purposes of the opinion related to the Rights expressed
herein, we have assumed that (1) FPL Group has sufficient authorized but
unissued shares of preferred stock fully to provide for the exercise of the
Rights without amendment of the FPL Group Charter to increase the number of
authorized but unissued shares of preferred stock, (2) no member of the Board of
Directors of FPL Group has any personal interest therein (except for an interest
arising solely from ownership of Common Stock) and (3) in approving the Rights
Agreement and the transactions provided for therein, each member of the Board of
Directors has discharged his duties in the good faith exercise of his business
judgment, in a manner he reasonably believed to be in the best interest of FPL
Group and its shareholders and with such care as an ordinarily prudent person in
a like position would use under similar circumstances and that he did not act
solely or primarily to perpetuate his office. Nothing has come to our attention,
III-2
after due inquiry with respect thereto, that would lead us to believe that we
are not justified in relying on such assumptions.]
Upon the basis of the foregoing, we advise you that:
I.
FPL Group [(2,3)and FPL Group Capital each is] [(1)is] a validly
organized and existing corporation and is in good standing under the laws of the
State of Florida, and [(2,3)each] has valid franchises, licenses and permits
adequate for the conduct of its [(2,3)respective] businesses.
II.
FPL Group [(2,3)and FPL Group Capital each is] [(1)is] a corporation
duly authorized by its Charter to conduct the businesses which it is now
conducting as set forth in the Prospectus.
III.
[(2,3)The Indenture has been duly authorized by FPL Group Capital by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group Capital, and is a valid and binding obligation of FPL Group Capital
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
IV.
[(2,3)The Guarantee Agreement has been duly authorized by FPL Group by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group, and is a valid and binding obligation of FPL Group enforceable in
accordance with its terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting
creditors' rights and remedies generally and general principles of equity.]
V.
[(2,3)The FPL Group Capital Debentures [of each series] are valid and
binding obligations of FPL Group Capital enforceable in accordance with their
[respective] terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of equity.]
VI.
[(3)Each of the Purchase Contract Agreement, the Pledge Agreement and
the Purchase Contracts relating to the Securities (the "Purchase Contracts") has
been duly and validly authorized, executed and delivered by FPL Group and each
of the Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by each of FPL Group and FPL Group Capital.]
III-3
VII.
[(3)The Purchase Contract Agreement, the Pledge Agreement and the
Purchase Contracts are valid and binding obligations of FPL Group enforceable in
accordance with their respective terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity and, with respect to the Pledge Agreement, subject to any principles of
public policy limiting the rights to enforce the indemnification and exculpation
provisions contained therein.]
VIII.
[(1)The shares of Common Stock constituting a part of the Shares have
been duly authorized and are validly issued, fully paid and non-assessable and
the Rights are validly issued subject to the terms of the Rights Agreement.]
[(3)The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered by
FPL Group against payment therefor in accordance with the provisions of the
Purchase Contract Agreement, the Purchase Contracts and the Pledge Agreement,
will be fully paid and non-assessable and the related Rights, if any, when
issued in accordance with the provisions of the Rights Agreement will be validly
issued subject to the terms of the Rights Agreement.] [(1,3)The shareholders of
FPL Group have no preemptive rights pursuant to Florida law, the FPL Group
Charter or the FPL Group Bylaws, or, to our knowledge, any agreement or
instrument the terms of which are known to us to which FPL Group is now a party,
to subscribe for any of the Common Stock] [(3)issuable pursuant to the Purchase
Contracts or any of the Corporate Units].
IX.
To the best of our knowledge, [(2,3)FPL Group Capital and its direct
significant subsidiaries (as defined in Regulation S-X promulgated under the
Securities Act ("Regulation S-X")) have good and marketable title to all of the
capital stock or other ownership interests of their respective direct
significant subsidiaries (as defined in Regulation S-X) free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof, and] FPL Group and its direct significant subsidiaries (as defined in
Regulation S-X [(1)promulgated under the Securities Act ("Regulation S-X")])
have good and marketable title to all of the capital stock or other ownership
interests of their respective direct significant subsidiaries (as defined in
Regulation S-X) free and clear of all liens and encumbrances, except such as do
not materially affect the value thereof.
X.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statements of Eligibility on Form T-1, as to which we
express no opinion, the Registration Statement, at the Effective Date and the
Prospectus, at the 424 Date, complied as to form in all material respects with
the applicable requirements of the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder. The
III-4
Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement was declared, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
XI.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement [(2,3)and, with respect
to the FPL Group Capital Debentures, the compliance by FPL Group Capital with
all the terms and provisions of the Indenture and by FPL Group with all the
terms and provisions of the Guarantee Agreement], will not result in a breach of
any of the terms or provisions of, or constitute a default under, the FPL Group
Charter or the FPL Group Bylaws [(2,3)or the FPL Group Capital Charter or the
FPL Group Capital Bylaws], or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us to which FPL Group
[(2,3)or FPL Group Capital], or any of [(1)its] [(2,3)their respective]
subsidiaries [(2,3), as the case may be,] is now a party, except where such
breach or default would not have a material adverse effect on the business,
properties or financial condition of FPL Group [(2,3)or FPL Group Capital],
[(2,3)each] together with its [(2,3)respective] subsidiaries taken as a whole
[(2,3), as the case may be].
XII.
To the best of our knowledge, no approval, authorization, consent or
order of any public board or body (other than in connection or in compliance
with the provisions of the blue sky laws of any jurisdiction, as to which we
express no opinion, and other than those that have been obtained) is legally
required for the authorization of the issuance and sale of the [(2)FPL Group
Capital Debentures as guaranteed by the Guarantee] [(1)Shares] [(3)Securities,
or the Shares issuable pursuant to the Purchase Contracts].
XIII.
The statements made in the Prospectus under the headings
[(1)"Description of Common Stock"] [(2)"Description of Offered Debt Securities",
"Description of the Guarantee"] [(3)"Descripton of Common Stock", "Description
of Offered Debt Securities", "Description of the Guarantee", "Description of
Stock Purchase Contract and Stock Purchase Units"] [and _______________],
insofar as they purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
XIV.
[(2)The Indenture and the Guarantee Agreement are duly qualified under
the Trust Indenture Act of 1939, as amended.] [(3)The Indenture, the Guarantee
III-5
Agreement and the Purchase Contract Agreement are duly qualified under the Trust
Indenture Act of 1939, as amended.]
XV.
[(1)The Shares] [(3)The Securities] [(1,3)have been listed, upon
official notice of issuance, on The New York Stock Exchange, Inc.]
XVI.
Except as stated or referred to in the Prospectus, there is no
material pending legal proceeding to which FPL Group or any of its subsidiaries
[(2,3)or FPL Group Capital or any of its subsidiaries] is a party or of which
property of FPL Group or any of its subsidiaries [(2,3)or FPL Group Capital or
any of its subsidiaries] is the subject which is reasonably likely to be
determined adversely and, if determined adversely, might reasonably be expected
to have a material adverse effect on FPL Group and its subsidiaries taken as a
whole [(2,3)or FPL Group Capital and its subsidiaries taken as a whole, as the
case may be,] and, to the best of our knowledge, no such proceeding is known to
be contemplated by governmental authorities.
In rendering the foregoing opinion, we have assumed that the
certificates representing [(1,3)the Shares] [(3)and the Corporate Units] [(2)the
Securities] will conform to specimens examined by us, [(1,3)that the
certificates representing the Shares] [(1,3)will be duly countersigned by the
transfer agent and duly registered by the registrar thereof and] [(2,3)that the
FPL Group Capital Debentures will be duly authenticated by the Trustee under the
Indenture and] [(3)and the Corporate Units will be duly authenticated by the
Purchase Contract Agent under the Purchase Contract Agreement and] will be
delivered against payment of the purchase price as provided in the Agreement and
that the signatures on all documents examined by us are genuine, assumptions
which we have not independently verified. [(3)In addition, we have assumed for
purposes of the opinion related to the Rights expressed herein that, prior to
the issuance of any Common Stock pursuant to the terms of the Purchase
Contracts, there shall have been no amendment or termination of the Rights
Agreement, or other action, affecting the provisions for distribution of Rights
upon issuance of Common Stock as in effect on the date hereof.] [Insert
additional assumptions, if applicable]
Other than with respect to the opinion expressed in Paragraph [XIII]
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL Group
[(2,3)and FPL Group Capital], certain of [(1)its] [(2,3)their] other legal
counsel, [(1)its] [(2,3)their] independent public accountants and your
representatives. Additionally, as counsel to FPL Group [(2,3)and FPL Group
Capital], we have responsibility for certain of [(1)its] [(2,3)their] legal
matters. On the basis of such consideration, review and discussion, but without
independent check or verification except as stated, nothing has come to our
attention that would lead us to believe (except as to the financial statements
and other financial or statistical data contained or incorporated by reference
therein, as to which we express no belief, and except for those parts of the
Registration Statement that constitute the Statements of Eligibility on Form
T-1, as to which we express no belief), that the Registration Statement, at the
Effective Date, contained any untrue statement of a material fact or omitted to
III-6
state a material fact required to be stated therein or necessary in order to
make the statements contained therein not misleading or (except as aforesaid)
that the Prospectus at the 424 Date included, or at the date hereof includes,
any untrue statement of a material fact or the Prospectus at the 424 Date
omitted, or at the date hereof omits, to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
We are members of the Florida Bar and do not hold ourselves out as
experts on the laws of New York, and accordingly, this opinion is limited to the
laws of Florida and the federal laws of the United States insofar as they bear
on matters covered hereby. As to all matters of New York law [(3)and as to all
opinions expressed in Paragraph [VII] hereof], we have relied, with your
consent, upon an opinion of even date herewith addressed to you by Xxxxxx Xxxx &
Priest LLP, New York, New York. As to all matters of Florida law, Xxxxxx Xxxx &
Priest LLP and Hunton & Xxxxxxxx are hereby authorized to rely upon this opinion
as though it were rendered to each of them.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
STEEL XXXXXX & XXXXX LLP
III-7
SCHEDULE IV
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
[(1)We have acted as special counsel to FPL Group, Inc. ("FPL Group")
(a) in connection with the authorization and issuance by FPL Group of __________
shares of its common stock, $.01 par value ("Common Stock"), including the
preferred share purchase rights attached thereto (the "Rights") (collectively
referred to as the "Shares")] [(2)We have acted as special counsel to FPL Group,
Inc. ("FPL Group") and FPL Group Capital Inc ("FPL Group Capital") (a) in
connection with the authorization and issuance by FPL Group Capital of
$___________ aggregate principal amount of its _____ Debentures, Series due
___________________ [(the "____ Debentures") and $___________ aggregate
principal of its ______ Debentures, Series due ___________________ (the "___
Debentures", together with the ___ Debentures,] [("FPL Group Capital Debentures"
or "Securities")], issued under the Indenture (for Unsecured Debt Securities),
dated as of June 1, 1999 (the "Indenture"), from FPL Group Capital to The Bank
of New York, as Trustee, which FPL Group Capital Debentures are absolutely,
irrevocably and unconditionally guaranteed (the "Guarantee") by FPL Group
pursuant to that Guarantee Agreement dated as of June 1, 1999 from FPL Group to
The Bank of New York, as Guarantee Trustee (the "Guarantee Agreement")] [(3)We
have acted as special counsel to FPL Group, Inc. ("FPL Group") and FPL Group
Capital Inc ("FPL Group Capital") (a) in connection with the authorization and
issuance by FPL Group of its new securities ("Securities"), with such Securities
consisting of ________ equity units of FPL Group, initially consisting of
________ of FPL Group's corporate units ("Corporate Units"), and the
authorization and issuance by FPL Group Capital of certain of its debt
securities in connection therewith] and (b) in connection with the sale of the
[(1)Shares] [(2,3)Securities] to you in accordance with the Underwriting
Agreement, dated as of ______________ (the "Agreement"), [(1)between you and FPL
Group] [(2,3)among you, FPL Group and FPL Group Capital]. Capitalized terms used
in this opinion but not defined shall have the meanings set forth in the
Agreement.
We have participated in the preparation of or reviewed (1)
Registration Statement Nos. 333-85218 and 000-00000-00 which became effective on
April 24, 2002, which registration statement was filed jointly by FPL Group and
FPL Group Capital [(1)Inc ("FPL Group Capital")] with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"); (2) Registration Statement Nos. 333-_____ and
333-_____-01 effective on ____________ which registration statement was filed
jointly by FPL Group and FPL Group Capital with the Commission under the
Securities Act (references herein to the term "Registration Statement" as of any
given date shall mean Registration Statement Nos. 333-85218 and 000-00000-00 and
Registration Statement Nos. 333-_____ and 333-_____-01, each as amended and
supplemented to such date, including those documents incorporated by reference
therein as of such date pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents")); (3) the combined prospectus dated ____________
forming a part of Registration Statement Nos. 333-_____ and 333-_____-01, as
supplemented by a prospectus supplement dated ___________ relating to the
[(1)Shares] [(2,3)Securities], both such prospectus and prospectus supplement
filed pursuant to Rule 424(b) under the Securities Act ("Rule 424" and
references herein to the "Prospectus" as of any given date shall refer to such
prospectus, as supplemented by the prospectus supplement relating to the
Securities filed pursuant to Rule 424, and as further amended and supplemented
to such date, including the Incorporated Documents); [(2,3)(4) the Indenture;
(5) the Guarantee Agreement;] (6) the corporate proceedings of FPL Group with
respect to the Registration Statement [(2)and the Guarantee] [(3), the
Guarantee, the Pledge Agreement, the Purchase Contract Agreement and the
Remarketing Agreement]; (7) the corporate proceedings of FPL Group Capital with
respect to the Registration Statement [(2)and the FPL Group Capital Debentures];
[(3), the FPL Group Capital Debentures and the Remarketing Agreement]; (8) FPL
Group's Restated Articles of Incorporation as amended to the date hereof (the
"FPL Group Charter") and Bylaws as amended to the date hereof (the "FPL Group
Bylaws"); [(2,3)(9) FPL Group Capital's Articles of Incorporation as amended to
the date hereof (the "FPL Group Capital Charter") and Bylaws as amended to the
date hereof (the "FPL Group Capital Bylaws")]; [(3)(10) the Remarketing
Agreement; (11) the Pledge Agreement; (12) the Purchase Contract Agreement;]
[(1,3)(13) the Rights Agreement, dated as of July 1, 1996, between FPL Group and
EquiServe Trust Company, N.A. (as successor to Fleet National Bank, formerly
known as The First National Bank of Boston), as Rights Agent, as amended by an
Amendment to Rights Agreement, dated as of July 30, 2000 (the "Rights
Agreement"); (14) the corporate proceedings of FPL Group with respect to the
Rights Agreement and the Amendment to Rights Agreement;] and (15) such other
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of the foregoing, we advise you that:
I.
[(2,3)The Indenture has been duly authorized by FPL Group Capital by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group Capital, and is a valid and binding obligation of FPL Group Capital
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
II.
[(2,3)The Guarantee Agreement has been duly authorized by FPL Group by
all necessary corporate action, has been duly and validly executed and delivered
by FPL Group, and is a valid and binding obligation of FPL Group enforceable in
accordance with its terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting
creditors' rights and remedies generally and general principles of equity.]
IV-2
III.
[(2,3)The FPL Group Capital Debentures [of each series] are valid and
binding obligations of FPL Group Capital enforceable in accordance with their
[respective] terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of equity.]
IV.
[(3)Each of the Purchase Contract Agreement, the Pledge Agreement and
the Purchase Contracts relating to the Securities (the "Purchase Contracts") has
been duly and validly authorized, executed and delivered by FPL Group and each
of the Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by each of FPL Group and FPL Group Capital.]
V.
[(3)The Purchase Contract Agreement, the Pledge Agreement and the
Purchase Contracts are valid and binding obligations of FPL Group enforceable in
accordance with their respective terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity and, with respect to the Pledge Agreement, subject to any principles of
public policy limiting the rights to enforce the indemnification and exculpation
provisions contained therein.]
VI.
[(1)The shares of Common Stock constituting a part of the Shares have
been duly authorized and are validly issued, fully paid and non-assessable and
the Rights are validly issued subject to the terms of the Rights Agreement.]
[(3)The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered by
FPL Group against payment therefor in accordance with the provisions of the
Purchase Contract Agreement, the Purchase Contracts and the Pledge Agreement,
will be fully paid and non-assessable and the related Rights, if any, when
issued in accordance with the provisions of the Rights Agreement will be validly
issued subject to the terms of the Rights Agreement.] [(1,3)The shareholders of
FPL Group have no preemptive rights pursuant to the FPL Group Charter or the FPL
Group Bylaws, or, to our knowledge, any agreement or instrument the terms of
which are known to us to which FPL Group is now a party, to subscribe for any of
the Common Stock] [(3)issuable pursuant to the Purchase Contracts or any of the
Corporate Units].
VII.
To the best of our knowledge, [(2,3)FPL Group Capital and its direct
significant subsidiaries (as defined in Regulation S-X promulgated under the
Securities Act ("Regulation S-X")) have good and marketable title to all of the
capital stock or other ownership interests of their respective direct
significant subsidiaries (as defined in Regulation S-X) free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof, and] FPL Group and its direct significant subsidiaries (as defined in
Regulation S-X [(1)promulgated under the Securities Act ("Regulation S-X")])
IV-3
have good and marketable title to all of the capital stock or other ownership
interests of their respective direct significant subsidiaries (as defined in
Regulation S-X) free and clear of all liens and encumbrances, except such as do
not materially affect the value thereof.
VIII.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statements of Eligibility on Form T-1, as to which we
express no opinion, the Registration Statement, at the Effective Date and the
Prospectus, at the 424 Date, complied as to form in all material respects with
the applicable requirements of the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder. The
Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement was declared, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
IX.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement [(2,3)and, with respect
to the FPL Group Capital Debentures, the compliance by FPL Group Capital with
all the terms and provisions of the Indenture and by FPL Group with all the
terms and provisions of the Guarantee Agreement], will not result in a breach of
any of the terms or provisions of, or constitute a default under, the FPL Group
Charter or the FPL Group Bylaws [(2,3)or the FPL Group Capital Charter or the
FPL Group Capital Bylaws], or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us to which FPL Group
[(2,3)or FPL Group Capital], or any of [(1)its] [(2,3)their respective]
subsidiaries [(2,3), as the case may be,] is now a party, except where such
breach or default would not have a material adverse effect on the business,
properties or financial condition of FPL Group [(2,3)or FPL Group Capital],
[(2,3)each] together with its [(2,3)respective] subsidiaries taken as a whole
[(2,3), as the case may be].
X.
To the best of our knowledge, no approval, authorization, consent or
order of any public board or body (other than in connection or in compliance
with the provisions of the blue sky laws of any jurisdiction, as to which we
express no opinion, and other than those that have been obtained) is legally
required for the authorization of the issuance and sale of the [(2)FPL Group
Capital Debentures as guaranteed by the Guarantee] [(1)Shares] [(3)Securities,
or the Shares issuable pursuant to the Purchase Contracts].
IV-4
XI.
The statements made in the Prospectus under the headings
[(1)"Description of Common Stock"] [(2)"Description of Offered Debt Securities",
"Description of the Guarantee"] [(3)"Descripton of Common Stock", "Description
of Offered Debt Securities", "Description of the Guarantee", "Description of
Stock Purchase Contract and Stock Purchase Units"] [and _______________],
insofar as they purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
XII.
[(2)The Indenture and the Guarantee Agreement are duly qualified under
the Trust Indenture Act of 1939, as amended.] [(3)The Indenture, the Guarantee
Agreement and the Purchase Contract Agreement are duly qualified under the Trust
Indenture Act of 1939, as amended.]
XIII.
[(1)The Shares] [(3)The Securities] [(1,3)have been listed, upon
official notice of issuance, on The New York Stock Exchange, Inc.]
In rendering the foregoing opinion, we have assumed that the
certificates representing [(1,3)the Shares] [(3)and the Corporate Units] [(2)the
Securities] will conform to specimens examined by us, [(3)that the certificates
representing the Shares] [(1,3)will be duly countersigned by the transfer agent
and duly registered by the registrar thereof and] [(2,3)that the FPL Group
Capital Debentures will be duly authenticated by the Trustee under the Indenture
and] [(3) and the Corporate Units will be duly authenticated by the Purchase
Contract Agent under the Purchase Contract Agreement and] will be delivered
against payment of the purchase price as provided in the Agreement and that the
signatures on all documents examined by us are genuine, assumptions which we
have not independently verified. [(3)In addition, we have assumed for purposes
of the opinion related to the Rights expressed herein that, prior to the
issuance of any Common Stock pursuant to the terms of the Purchase Contracts,
there shall have been no amendment or termination of the Rights Agreement, or
other action, affecting the provisions for distribution of Rights upon issuance
of Common Stock as in effect on the date hereof.] [Insert additional
assumptions, if applicable]
The opinion set forth in Paragraph [VI] herein is subject to the same
limitations and qualifications contained in the opinion of Steel Xxxxxx & Xxxxx
LLP referred to below.
Other than with respect to the opinion expressed in Paragraph [XI]
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL Group
[(2,3)and FPL Group Capital], certain of [(1)its] [(2,3)their] other legal
counsel, [(1)its] [(2,3)their] independent public accountants and your
representatives. On the basis of such consideration, review and discussion, but
without independent check or verification except as stated, nothing has come to
our attention that would lead us to believe (except as to the financial
statements and other financial or statistical data contained or incorporated by
reference therein, as to which we express no belief, and except for those parts
of the Registration Statement that constitute the Statements of Eligibility on
Form T-1, as to which
IV-5
we express no belief), that the Registration Statement, at the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
contained therein not misleading or (except as aforesaid) that the Prospectus at
the 424 Date included, or at the date hereof includes, any untrue statement of a
material fact or the Prospectus at the 424 Date omitted, or at the date hereof
omits, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of Florida. We do not pass upon matters relating to the
incorporation of FPL Group Capital or FPL Group, titles to property or
franchises. As to all matters of Florida law [(1,3)and as to all opinions
expressed in Paragraph [VI] hereof], we have relied, with your consent, upon an
opinion of even date herewith addressed to you by Steel Xxxxxx & Xxxxx LLP,
Miami, Florida. As to all matters of New York law, Steel Xxxxxx & Xxxxx LLP is
hereby authorized to rely upon this opinion as though it were rendered to Steel
Xxxxxx & Xxxxx LLP.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
IV-6
SCHEDULE V
[LETTERHEAD OF HUNTON & XXXXXXXX]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
[(1)We have acted as counsel for you in connection with your several
purchases from FPL Group, Inc. ("FPL Group") of __________ shares of its common
stock, $.01 par value ("Common Stock"), including the preferred share purchase
rights attached thereto (the "Rights") (collectively referred to as the
"Shares")] [(2)We have acted as counsel for you in connection with your several
purchases from FPL Group Capital Inc ("FPL Group Capital") of $___________
aggregate principal amount of its _____ Debentures, Series due
___________________ [(the "____ Debentures") and $___________ aggregate
principal of its ______ Debentures, Series due ___________________ (the "___
Debentures", together with the ___ Debentures,] [("FPL Group Capital Debentures"
or "Securities")], issued under the Indenture (for Unsecured Debt Securities),
dated as of June 1, 1999 (the "Indenture"), from FPL Group Capital to The Bank
of New York, as Trustee, which FPL Group Capital Debentures are absolutely,
irrevocably and unconditionally guaranteed (the "Guarantee") by FPL Group, Inc.
("FPL Group") pursuant to that Guarantee Agreement dated as of June 1, 1999 from
FPL Group to The Bank of New York, as Guarantee Trustee (the "Guarantee
Agreement")] [(3)We have acted as counsel for you in connection with your
several purchases from FPL Group, Inc. ("FPL Group") of its new securities
("Securities"), with such Securities consisting of _______ equity units of FPL
Group, initially consisting of _________of FPL Group's corporate units
("Corporate Units")] pursuant to the Underwriting Agreement, dated as of
______________ (the "Agreement"), [(1)between you and FPL Group] [(2,3)among
you, FPL Group and FPL Group Capital Inc ("FPL Group Capital")]. Capitalized
terms used in this opinion but not defined shall have the meanings set forth in
the Agreement.
We have examined such documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to enable us to express this
opinion.
On the foregoing basis, we are of the opinion that:
1. [(2,3)The Indenture has been duly authorized by FPL Group Capital
by all necessary corporate action, has been duly and validly executed and
delivered by FPL Group Capital, and is a valid and binding obligation of FPL
Group Capital enforceable in accordance with its terms, except as limited or
affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
2. [(2,3)The Guarantee Agreement has been duly authorized by FPL Group
by all necessary corporate action, has been duly and validly executed and
delivered by FPL Group, and is a valid and binding obligation of FPL Group
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity.]
3. [(2,3)The FPL Group Capital Debentures [of each series] are valid
and binding obligations of FPL Group Capital enforceable in accordance with
their [respective] terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting
creditors' rights and remedies generally and general principles of equity.]
4. [(3)Each of the Purchase Contract Agreement, the Pledge Agreement
and the Purchase Contracts relating to the Securities (the "Purchase Contracts")
has been duly and validly authorized, executed and delivered by FPL Group and
each of the Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by each of FPL Group and FPL Group Capital.]
5. [(3)The Purchase Contract Agreement, the Pledge Agreement and the
Purchase Contracts are valid and binding obligations of FPL Group enforceable in
accordance with their respective terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general principles of
equity and, with respect to the Pledge Agreement, subject to any principles of
public policy limiting the rights to enforce the indemnification and exculpation
provisions contained therein.]
6. [(1)The shares of Common Stock constituting a part of the Shares
have been duly authorized and are validly issued, fully paid and non-assessable
and the Rights are validly issued subject to the terms of the Rights Agreement.]
[(3)The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered by
FPL Group against payment therefor in accordance with the provisions of the
Purchase Contract Agreement, the Purchase Contracts and the Pledge Agreement,
will be fully paid and non-assessable and the related Rights, if any, when
issued in accordance with the provisions of the Rights Agreement will be validly
issued subject to the terms of the Rights Agreement.] [(1,3)The shareholders of
FPL Group have no preemptive rights pursuant to the FPL Group Charter or the FPL
Group Bylaws to subscribe for any of the Common Stock] [(3)issuable pursuant to
the Purchase Contracts or any of the Corporate Units].
7. Registration Statement Nos. 333-85218 and 000-00000-00 and
Registration Statement Nos. 333-_____ and 333-_____-01 (collectively, the
"Registration Statement"), at the Effective Date, and the Prospectus, at the 424
Date (except as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, as to which we express no
opinion, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
opinion), complied as to form in all material respects with the applicable
V-2
requirements of the Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder. The Incorporated Documents (except as
to the financial statements and other financial or statistical data contained or
incorporated by reference therein, as to which we express no opinion), at the
time they were filed with the Commission, complied as to form in all material
respects with the applicable requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder. The
Registration Statement was declared, and is, at the date hereof, effective under
the Securities Act, and to the best of our knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8 of the
Securities Act.
8. The statements made in the Prospectus under the headings
[(1)"Description of Common Stock"] [(2)"Description of Offered Debt Securities",
"Description of the Guarantee"] [(3)"Descripton of Common Stock", "Description
of Offered Debt Securities", "Description of the Guarantee", "Description of
Stock Purchase Contract and Stock Purchase Units"] [and _______________],
insofar as they purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
9. [(2)The Indenture and the Guarantee Agreement are duly qualified
under the Trust Indenture Act of 1939, as amended.] [(3)The Indenture, the
Guarantee Agreement and the Purchase Contract Agreement are duly qualified under
the Trust Indenture Act of 1939, as amended.]
In rendering the foregoing opinion, we have assumed that the
certificates representing [(1,3)the Shares] [(3)and the Corporate Units] [(2)the
Securities] will conform to specimens examined by us, [(3)that the certificates
representing the Shares] [(1,3)will be duly countersigned by the transfer agent
and duly registered by the registrar thereof and] [(2,3)that the FPL Group
Capital Debentures will be duly authenticated by the Trustee under the Indenture
and] [(3) and the Corporate Units will be duly authenticated by the Purchase
Contract Agent under the Purchase Contract Agreement and] will be delivered
against payment of the purchase price as provided in the Agreement and that the
signatures on all documents examined by us are genuine, assumptions which we
have not independently verified. [(3)In addition, we have assumed for purposes
of the opinion related to the Rights expressed herein that, prior to the
issuance of any Common Stock pursuant to the terms of the Purchase Contracts,
there shall have been no amendment or termination of the Rights Agreement, or
other action, affecting the provisions for distribution of Rights upon issuance
of Common Stock as in effect on the date hereof.] [Insert additional
assumptions, if applicable] We express no opinion or belief as to the
incorporation of FPL Group or FPL Group Capital, titles to property or
franchises.
The opinion set forth in Paragraph [6] herein is subject to the same
limitations and qualifications contained in the opinion of Steel Xxxxxx & Xxxxx
LLP referred to below.
In passing on the form of the Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by FPL Group [(2,3)and FPL Group Capital]
and take no responsibility therefor, except insofar as such statements relate to
us and as set forth in paragraph [8] above. Other than with respect to the
opinion expressed in Paragraph [8] hereof, we have not ourselves checked the
V-3
accuracy or completeness of, or otherwise verified, the information furnished
with respect to the matters in the Registration Statement or the Prospectus. We
have generally reviewed and discussed such information with certain officers and
employees of FPL Group [(2,3)and FPL Group Capital], certain of [(1)its]
[(2,3)their] legal counsel, [(1)its] [(2,3)their] independent public accountants
and your representatives. On the basis of such review and discussion, but
without independent check or verification except as stated, nothing has come to
our attention that would lead us to believe (except as to the financial
statements and other financial or statistical data contained or incorporated by
reference therein, as to which we express no belief, and except for those parts
of the Registration Statement that constitute the Statements of Eligibility on
Form T-1, as to which we express no belief), that the Registration Statement, at
the Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements contained therein not misleading or (except as aforesaid)
that the Prospectus at the 424 Date included, or at the date hereof includes,
any untrue statement of a material fact or the Prospectus at the 424 Date
omitted, or at the date hereof omits, to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
This opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and, to the extent set forth
herein, the law of the State of Florida. We have reviewed the opinion of even
date herewith addressed to you of Steel Xxxxxx & Xxxxx LLP, counsel for FPL
Group [(2,3)and FPL Group Capital], required by Section [8(c)(i)] of the
Agreement, and we believe such opinion to be satisfactory. We have, with your
consent, relied upon such opinion as to the matters covered in such opinion
relating to the laws of the State of Florida. We have also reviewed the opinion
of even date herewith addressed to you by Xxxxxx Xxxx & Priest LLP, counsel to
FPL Group [(2,3)and FPL Group Capital], required by Section [8(c)(i)] of the
Agreement, and we believe such opinion to be satisfactory.
This opinion is given to you solely for your use as the Underwriters
in connection with the Agreement and the transactions contemplated thereunder
and may not be relied upon by any other person or for any other purpose without
our express written consent. This opinion is expressed as of the date hereof,
and we do not assume any obligation to update or supplement it to reflect any
fact or circumstance that hereafter comes to our attention, or any change in law
that hereafter occurs.
Very truly yours,
HUNTON & XXXXXXXX
V-4
