EXHIBIT 1
[Name of Issuer]
[Name of Security]
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UNDERWRITING AGREEMENT
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[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. [(1)FPL Group, Inc., a Florida corporation ("FPL Group"),
proposes to issue and sell an aggregate of _______ 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 the "Shares"
or "Securities").] [(2)FPL Group Capital Inc, a Florida corporation ("FPL Group
Capital") and a wholly-owned subsidiary of FPL Group, Inc., a Florida
corporation ("FPL Group"), proposes to issue and sell its debt securities of the
series designation[s], with the terms and in the principal amount[s] specified
in Schedule I hereto (the "Debentures" or "Securities"). The Debentures will be
absolutely, irrevocably and unconditionally guaranteed by FPL Group pursuant to
and in accordance with the terms of the Guarantee Agreement (as hereinafter
defined).] [(3)FPL Group, Inc., a Florida corporation ("FPL Group"), proposes to
issue and sell FPL Group's new securities ("Securities"), and in connection
therewith FPL Group Capital Inc, a Florida corporation ("FPL Group Capital") and
a wholly-owned subsidiary of FPL Group, proposes to issue and sell certain of
its debt securities as specified herein. The Securities will consist of an
aggregate of _______ equity units consisting of an aggregate 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.] [2,3Each
of FPL Group and FPL Group Capital hereby confirms its agreement with the
several Underwriters (as defined below) as set forth herein.]
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(1) For use in connection with Common Stock.
(2) For use in connection with Debt Securities.
(3) For use in connection with Stock Purchase Units.
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, as amended,
between FPL Group and EquiServe Trust Company, N.A., as successor to Fleet
National Bank (formerly known as The First National Bank of Boston), and the
Restated Articles of Incorporation of FPL Group, as amended, one Right will be
issued with each newly-issued share of Common Stock.] [(2)The Debentures [of
each series] will be a series of debentures issued by FPL Group Capital under an
Indenture, dated as of June 1, 1999, to The Bank of New York, as Trustee, which
has been heretofore delivered to the Representatives (together with any
amendments or supplements thereto, the "Indenture"). The Debentures will be
absolutely, irrevocably and unconditionally guaranteed by FPL Group pursuant to,
and in accordance with, the terms of a Guarantee Agreement, dated as of June 1,
1999, between FPL Group, as Guarantor, and The Bank of New York, as Guarantee
Trustee, which has been heretofore delivered to the Representatives (the
"Guarantee Agreement"). The term "Guarantee" as used in this agreement shall
refer to the guarantee pursuant to the Guarantee Agreement relating to the
Debentures (as defined below).] [(3)Each Corporate Unit will consist of a unit
comprised of (a) a stock purchase contract (a "Purchase Contract") under which
(i) the holder will purchase from FPL Group not later than __________, ____ (the
"Purchase Contract Settlement Date"), for $__ in cash, a fraction of a newly
issued share of FPL Group's common stock, $.01 par value (the "Common Stock"),
including the preferred share purchase rights, if any, attached thereto (the
"Rights") (collectively referred to as the "Shares") determined as provided in
the Purchase Contract, and (ii) FPL Group will pay the holder unsecured contract
adjustments payments ("Contract Adjustment Payments") at the rate of ____% of
the Stated Amount per annum, subject to the right of FPL Group to defer such
payments, and (b) prior to the Purchase Contract Settlement Date, beneficial
ownership of a Series __ Debenture due __________, ____ issued by FPL Group
Capital (a "Debenture"), having a principal amount of $__. The Debentures will
be a series of debentures issued by FPL Group Capital under an Indenture, dated
as of June 1, 1999, to The Bank of New York, as Trustee (together with any
amendments and supplements thereto, the "Indenture"), a copy of which has been
heretofore delivered to the Representatives, and will be absolutely, irrevocably
and unconditionally guaranteed by FPL Group pursuant to, and in accordance with,
the terms of a Guarantee Agreement, dated as of June 1, 1999, between FPL Group,
as Guarantor, and The Bank of New York, as Guarantee Trustee, a copy of which
has been heretofore delivered to the Representatives (the "Guarantee
Agreement"). The term "Guarantee" as used in this agreement shall refer to the
guarantee pursuant to the Guarantee Agreement relating to the Debentures. In
accordance with the terms of the Purchase Contract Agreement, dated as of
__________, ____ (the "Purchase Contract Agreement"), between FPL Group and
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The Bank of New York, as Purchase Contract Agent and Trustee (the "Purchase
Contract Agent"), the Debentures constituting a part of the Corporate Units will
be pledged by the Purchase Contract Agent, on behalf of the holders of the
Securities (as defined herein), to __________, as Collateral Agent, pursuant to
the Pledge Agreement, dated as of __________, ____ (the "Pledge Agreement"),
among FPL Group, the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent and the Securities Intermediary, to secure the holders'
obligations to purchase Shares pursuant to the Purchase Contracts. Under certain
circumstances, holders of Corporate Units may substitute certain U.S. Treasury
securities for the Debentures that are a part of such holders' Corporate Units
and thereby create treasury units ("Treasury Units") pursuant to the terms of
the Purchase Contract Agreement and the Pledge Agreement. Also, under certain
circumstances, the Debentures will be subject to remarketing pursuant to a
Remarketing Agreement, dated as of __________, ____ among __________, as
Remarketing Agent and as Reset Agent, FPL Group, FPL Group Capital and the
Purchase Contract Agent (the "Remarketing Agreement").]
3. [(2,3)Representations and Warranties of FPL Group Capital. FPL Group
Capital represents and warrants to the several Underwriters that:
(a) FPL Group Capital has filed with the Securities and Exchange
Commission (the "Commission") a joint registration statement with FPL Group
on Form S-3, including a prospectus (the "Registration Statement
Nos. 333-75482 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 the Shares or other agreements or
instruments requiring FPL Group to issue the 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 $850,000,000 aggregate amount of securities registered
with the Commission under the Securities Act pursuant to Registration
Statement Nos. 333-75482 and 000-00000-00 have been previously issued. FPL
Group Capital has also filed with the Commission a joint registration
statement with FPL Group on Form S-3, including a joint prospectus (the
"Registration Statement Nos. 333-_____ and 333-_____-01"), for registration
under the Securities Act of $1,150,000,000 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 mean Registration Statement
Nos. 333-75482 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
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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 Pillsbury Winthrop LLP, who are acting as counsel for the several
Underwriters ("Counsel for the Underwriters"), or any such amendment or
supplement to which the Representatives shall reasonably object in writing,
or which shall be unsatisfactory to Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the date it is filed with the Commission
pursuant to Rule 424 (such date, the "424 Date") and at the Closing Date,
and the Registration Statement and the Indenture at the Closing Date, will
fully comply, in all material respects with the applicable provisions of
the Securities Act and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), respectively, and, in each case, the applicable instructions,
rules and regulations of the Commission thereunder; the Registration
Statement, at the Effective Date, did not, and at the Closing Date, the
Registration Statement will not, contain an untrue statement of a material
fact, or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus, on
the 424 Date and at the Closing Date, will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading; provided, that the foregoing
representations and warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to FPL Group or FPL Group Capital by or on
behalf of any Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or the
Prospectus, or to any statements in or omissions from the 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 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.
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(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 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 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, 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 Debentures conform in all material respects to the
description thereof in the Prospectus.
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(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, jointly with FPL Group Capital [(1)Inc, a Florida
corporation ("FPL Group Capital") and a wholly-owned subsidiary of FPL
Group], has filed with the [(1)Securities and Exchange Commission (the
"Commission")] [(2,3)the Commission] Registration Statement Nos. 333-75482
and 000-00000-00 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 the Shares or other agreements or
instruments requiring FPL Group to issue the 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 $850,000,000 aggregate amount of securities registered
with the Commission under the Securities Act pursuant to Registration
Statement Nos. 333-75482 and 000-00000-00 have been previously issued. FPL
Group has also filed with the Commission a joint registration statement
with FPL Group Capital on Form S-3, including a joint prospectus (the
"Registration Statement Nos. 333-_____ and 333-_____-01"), for registration
under the Securities Act of $1,150,000,000 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. [(1)References herein to the term
"Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-75482 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, 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 Shares proposed to be filed
pursuant to Rule 424 of the general rules and regulations of the Securities
6
Act ("Rule 424"), and as further amended or supplemented as of such date
(other than amendments or supplements relating to (i) securities other than
the Shares or (ii) when referring to the Prospectus relating to a
particular offering of the Shares, Shares other than the Shares being
offered on such date), including all Incorporated Documents. References
herein to the term "Effective Date" shall be deemed to refer to the later
of the time and date that Registration Statement Nos. 333-_____ 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)Pillsbury Winthrop LLP, who are acting as counsel for the
several Underwriters ("Counsel for the Underwriters")] [(2,3)Counsel for
the Underwriters], or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters.
(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 an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading; and the Incorporated Documents,
when filed with the Commission, fully complied or will fully comply in all
material respects with the applicable provisions of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the applicable
instructions, rules and regulations of the Commission thereunder; provided,
that the foregoing representations and warranties in this subsection (b)
shall not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to FPL Group [(2,3)or FPL
Group Capital] by or on behalf of any Underwriter through the
Representatives expressly for use in connection with the preparation of the
Registration Statement or the Prospectus, or to any statements in or
omissions from the Statements of Eligibility on Form T-1, or amendments
thereto, of the respective Trustees under 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 Prospectus relating
to 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
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financial condition and results of operations of FPL Group and its
subsidiaries taken as a whole, at the respective dates and for the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and Deloitte & Touche
LLP, who have audited the audited financial statements of FPL Group, are
independent public accountants as required by the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent dates as of
which information is given in the Registration Statement and Prospectus,
there has not been any material adverse change in the business, properties
or financial condition of FPL Group and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, nor has any transaction
been entered into by FPL Group or any of its subsidiaries that is material
to FPL Group and its subsidiaries taken as a whole, other than changes and
transactions contemplated by the Registration Statement and Prospectus, and
transactions in the ordinary course of business. FPL Group and its
subsidiaries have no contingent obligation material to FPL Group and its
subsidiaries taken as a whole, which is not disclosed in or contemplated by
the Registration Statement and Prospectus.
(e) The execution and delivery of this agreement, 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 Debentures
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].
(f) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated and 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
8
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 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, dated as of July 1, 1996, between
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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 public offering of the [(1)Shares]
[(3)Corporate Units]. [(1,3)The Underwriters have advised FPL Group that the
Securities will be offered to the public at $___ per [(1)share] [(3)unit] and to
certain dealers selected by the Representatives at a price which represents a
concession not in excess of $____ per [(1)share] [(3)unit] under the public
offering price.]
[(2)The Underwriters agree to make a bona fide public offering of the
Debentures and the Guarantee as set forth in the Prospectus, such public
offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.]
[(3)The Debentures constituting a part of the Corporate Units will be
pledged, together with other collateral, to the Collateral Agent to secure the
holders' obligations to purchase Common Stock under the Purchase Contracts. Such
pledge shall be effected by delivery to the Collateral Agent of the Debentures
to be pledged in certificated form endorsed in blank, at the Closing Date in
accordance with the Pledge Agreement.]
6. Time, Date and Place of Closing, Default of Underwriter. Delivery of
the Securities [of each series] and payment therefor by wire transfer in Federal
funds [(3), and against delivery to the Collateral Agent of the Debentures
constituting a part of the Corporate Units,] shall be made at the time, date and
place set forth in Schedule I, 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
10
[(3)and the Debentures] by the Representatives on behalf of the Underwriters,
[(1,3)FPL Group] [(2)FPL Group Capital] agrees to make such Securities [(3)and
the Debentures] available to the Representatives for such purpose at the offices
of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx 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 each series] which such Underwriter
has agreed to purchase and pay for hereunder (otherwise than by reason of any
failure on the part of FPL Group [(2,3)or FPL Group Capital] to comply with any
of the provisions contained herein), the non-defaulting Underwriters shall be
obligated to purchase and pay for (in addition to the respective [(1,3)number]
[(2)principal amount] of the Securities [of each series] set forth opposite
their respective names in Schedule II hereto) the [(1,3)number] [(2)principal
amount] of the Securities [of each series] which such defaulting Underwriter or
Underwriters failed to purchase and pay for, up to a [(1,3)number] [(2)principal
amount] thereof equal to, in the case of each such remaining Underwriter, ten
percent (10%) of the aggregate [(1,3)number] [(2)principal amount] of the
Securities [of the series as to which there is a default and which are] set
forth opposite the name of such remaining Underwriter in said Schedule II, and
such remaining Underwriters shall have the right, within 24 hours of receipt of
such notice, either to purchase and pay for (in such proportion as may be agreed
upon among them), 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 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 [(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 subsections (c) and (e) of Section [7] hereof.
11
7. Covenants of FPL Group [(2,3)and FPL Group Capital]. FPL Group
[(2,3)and FPL Group Capital] [(1)agrees] [(2,3)agree] with the several
Underwriters that:
(a) FPL Group [(2,3)and FPL Group Capital] will promptly file the
Prospectus with the Commission pursuant to Rule 424 under the Securities
Act.
(b) [(1,3)FPL Group] [(2)FPL Group Capital] will deliver to the
Representatives and to Counsel for the Underwriters one signed copy of the
Registration Statement or, if a signed copy is not available, one conformed
copy of the Registration Statement certified by an officer of [(1,3)FPL
Group] [(2)FPL Group Capital] to be in the form as originally filed,
including all Incorporated Documents and exhibits, except those
incorporated by reference, which relate to the Securities, including a
signed or conformed copy of each consent and certificate included therein
or filed as an exhibit thereto. As soon as practicable after the date of
this agreement, [(1,3)FPL Group] [(2)FPL Group Capital] will deliver to the
Underwriters through the Representatives as many copies of the Prospectus
as the Representatives may reasonably request for the purposes contemplated
by the Securities Act.
(c) [(1,3)FPL Group] [(2)FPL Group Capital] will pay or cause to be
paid all expenses in connection with (i) the preparation and filing of the
Registration Statement and Prospectus, (ii) the issuance and delivery of
the Securities as provided in Section [6] hereof, and (iii) the printing
and delivery to the Representatives for the account of the Underwriters, in
reasonable quantities, of copies of the Registration Statement [(1)and] [,]
the Prospectus [(2)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 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 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
12
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 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 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 the
[(2,3)respective] representations and warranties made by FPL Group
[(2,3)and FPL Group Capital] herein are true and correct as of the Closing
Date in all material respects.
13
(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 Pillsbury Winthrop LLP, Counsel for the Underwriters,
opinions (with a copy for each of the Underwriters) in substantially the
form and substance prescribed in Schedules III, IV and V hereto (i) with
such changes therein as may be agreed upon by FPL Group [(2,3), FPL Group
Capital] and the Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Securities shall
be supplemented or amended after the Prospectus shall have been filed with
the Commission pursuant to Rule 424, with any changes therein necessary to
reflect such supplementation or amendment.
(d) At the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter (with copies thereof for each of the
Underwriters) to the effect that (i) they are independent public
accountants with respect to FPL Group within the meaning of the Securities
Act and the Exchange Act and the applicable published rules and regulations
thereunder; (ii) in their opinion, the consolidated financial statements of
FPL Group audited by them and incorporated by reference in the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the published
rules and regulations thereunder; (iii) on the basis of performing a review
of interim financial information as described in Statement on Auditing
Standards No. 71, Interim Financial Information, on the unaudited condensed
consolidated financial statements of FPL Group incorporated by reference in
the Prospectus, reading the latest available interim unaudited consolidated
financial statements of FPL Group since the close of FPL Group's most
recent audited fiscal year, reading the minutes and consents of the Board
of Directors and the Finance Committee of the Board of Directors and
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
14
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 condensed consolidated
balance sheet incorporated by reference in the Prospectus, except in all
instances for changes 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; (c) for the period from the date of
the most recent condensed consolidated balance sheet incorporated by
reference in the Prospectus to the latest available interim balance sheet
read by them and for the period from the date of the latest available
interim balance sheet read by them to a specified date not more than five
days prior to the Closing Date, there were any decreases, as compared with
the corresponding period in the preceding year, in total consolidated
operating revenues or in net income, except in all instances for decreases
which the Prospectus discloses have occurred or may occur, or which are
described in such letter; and (iv) they have carried out certain procedures
and made certain findings, as specified in such letter, with respect to
certain amounts included in the Prospectus and Exhibit 12 to the
Registration Statement and such other items as the Representatives may
reasonably request.
(e) Since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus, and up to the Closing
Date, (i) there shall have been no material adverse change in the business,
properties or financial condition of [(2,3)(a) FPL Group Capital and its
subsidiaries taken as a whole or (b)] FPL Group and its subsidiaries taken
as a whole, except [(2,3)in each case] as disclosed in or contemplated by
the Registration Statement and Prospectus, and (ii) there shall have been
no material transaction entered into by [(2,3)(a) FPL Group Capital or any
of its subsidiaries that is material to FPL Group Capital and its
subsidiaries taken as a whole or (b)] FPL Group or any of its subsidiaries
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) [(3)The Corporate Units constituting the Securities shall have
been approved for listing on the New York Stock Exchange ("NYSE") upon
15
notice of issuance and the Shares issuable under the Purchase Contracts
constituting a part of the Securities shall have been approved for listing
on the NYSE upon 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
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
16
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 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 Incorporated Documents,
unless the alleged omission or alleged untrue statement with respect to
such preliminary prospectus was not corrected 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 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
17
Securities Act or 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 or otherwise, 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] 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 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 indemnification provisions of this Section [10] of this
agreement, 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
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
18
retained by them; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and counsel
for the indemnifying party shall have reasonably concluded that there may
be a conflict of interest involved in the representation by such counsel of
both the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party or parties, to participate in the
defense of such action on behalf of such indemnified party or parties at
the expense of the indemnifying party or parties (it being understood,
however, that the indemnifying party or parties shall not be liable for the
expenses of more than one separate counsel representing the indemnified
parties who are parties to such action). FPL 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 indemnification provisions of this Section [10],
unless such settlement, compromise or consent (i) includes an unconditional
release of such other parties from all liability arising out of such claim
or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of such other
parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable law by
an indemnified party, each indemnifying party agrees to contribute to such
indemnified party with respect to any and all losses, claims, damages,
liabilities and expenses for which each such indemnification provided for
in subsections (a) or (b) above shall be unenforceable, in such proportion
as shall be appropriate to reflect (i) the relative fault of FPL Group
[(2,3)and FPL Group Capital] on the one hand and the Underwriters on the
other in connection with the statements or omissions which have resulted in
such losses, claims, damages, liabilities and expenses, (ii) the relative
benefits received by FPL Group [(2,3)and FPL Group Capital] on the one hand
and the Underwriters on the other hand from the offering of the Securities
pursuant to this agreement, and (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution with respect thereto from
any indemnifying party not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by FPL Group [(2,3)and FPL Group Capital] 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) was 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
19
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 The New York Stock Exchange, Inc. (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 Debentures
or any securities of FPL Group Capital which are of the same class as the
Debentures by either [Xxxxx'x Investor Service, Inc. ("Moody's")] or
[Standard & Poor's Ratings Group, 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 Debentures [of each series] or any
securities of FPL Group Capital which are of the same class as the
Debentures [of each series], the effect of any such event specified in (i)
or (ii) above 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] 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
20
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. 333-75482 and 000-00000-00 and 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]
Purchase Price:
Underwriting Discount:
Public Offering Price:
Closing Date, Time and Location
SCHEDULE II
[(1,3)Number of Securities]
Underwriter [(2)Principal Amount of 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 Underwriting
Agreement, as herein defined
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 an aggregate 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" or the "Securities")] [(2)We have
acted as counsel to FPL Group, Inc. ("FPL Group") and FPL Group Capital Inc
("FPL Group Capital") (a) in connection with the authorization and issuance by
FPL Group Capital of $___________ aggregate principal amount of its _____
Debentures, Series due ___________________ [(the "____ Debentures") and
$___________ aggregate principal of its ______ Debentures, Series due
___________________ (the "___ Debentures", together with the ___ Debentures,]
[(the "Debentures" or the "Securities")], issued under the Indenture (for
Unsecured Debt Securities), dated as of June 1, 1999 (the "Indenture"), from FPL
Group Capital to The Bank of New York, as Trustee, which Debentures are
absolutely, irrevocably and unconditionally guaranteed (the "Guarantee") by FPL
Group pursuant to that Guarantee Agreement dated as of June 1, 1999 from FPL
Group to The Bank of New York, as Guarantee Trustee (the "Guarantee Agreement")]
[(3)We have acted as counsel to FPL Group, Inc. ("FPL Group") and FPL Group
Capital Inc ("FPL Group Capital") (a) in connection with the authorization and
issuance by FPL Group of its new securities (the "Securities"), with such
Securities consisting of an aggregate of ________ equity units of FPL Group,
initially consisting of an aggregate 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 Securities to you in accordance with the Underwriting
Agreement, dated as of ______________ (the "Agreement"), between you [(1)and FPL
Group] [(2,3), FPL Group and FPL Group Capital]. Capitalized terms used in this
opinion but not defined shall have the meaning set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-75482 and 000-00000-00 effective on December 26, 2001, 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 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. 333-75482 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 Securities, both such
prospectus and prospectus supplement filed pursuant to Rule 424(b) under the
Securities Act ("Rule 424" and references herein to the "Prospectus" as of any
given date shall refer to such prospectus, as supplemented by the prospectus
supplement relating to the Securities filed pursuant to Rule 424, and as further
amended and supplemented to such date, including the Incorporated Documents);
[(2,3)(4) the Indenture; (5) the Guarantee Agreement;] (6) the corporate
proceedings of FPL Group with respect to the Registration Statement [(2)and the
Guarantee] [(3), the Guarantee, the Pledge Agreement, the Purchase Contract
Agreement and the Remarketing Agreement]; (7) the corporate proceedings of FPL
Group Capital with respect to the Registration Statement [(2)and the
Debentures]; [(3), the Debentures and the Remarketing Agreement]; (8) FPL
Group's Restated Articles of Incorporation as amended to the date hereof (the
"FPL Group Charter") and Bylaws as amended to the date hereof (the "FPL Group
Bylaws"); [(2,3)(9) FPL Group Capital's Articles of Incorporation as amended to
the date hereof (the "FPL Group Capital Charter") and Bylaws as amended to the
date hereof (the "FPL Group Capital Bylaws")]; [(3)(10) the Remarketing
Agreement; (11) the Pledge Agreement; (12) the Purchase Contract Agreement;]
[(1,3)(13) the Rights Agreement, dated as of July 1, 1996, 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, after due
III-2
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 all necessary corporate
action, has been duly and validly executed and delivered, 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 all necessary
corporate action, has been duly and validly executed and delivered, 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 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 initially comprising 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 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 (as such term is
defined in the Agreement) and the Prospectus, at the date it was filed with the
Commission pursuant to Rule 424 (such date, the "424 Date"), complied as to form
in all material respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the Commission
III-4
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.
XI.
The consummation of the transactions contemplated in the Agreement and the
fulfillment of the terms contained in the Agreement [(2,3)and, with respect to
the Debentures, the compliance by FPL Group Capital with all the terms and
provisions of the Indenture and by FPL Group with all the terms and provisions
of the Guarantee Agreement], will not result in a breach of any of the terms or
provisions of, or constitute a default under, the FPL Group Charter or the FPL
Group Bylaws [(2,3)or the FPL Group Capital Charter or the FPL Group Capital
Bylaws], or any indenture, mortgage, deed of trust or other agreement or
instrument the terms of which are known to us to which FPL Group [(2,3)or FPL
Group Capital], or any of [(1)its] [(2,3)their respective] subsidiaries [(2,3),
as the case may be,] is now a party, except where such breach or default would
not have a material adverse effect on the business, properties or financial
condition of FPL Group [(2,3)or FPL Group Capital], [(2,3)each] together with
its [(2,3)respective] subsidiaries taken as a whole [(2,3), as the case may be].
XII.
To the best of our knowledge, no approval, authorization, consent or order
of any public board or body (other than in connection or in compliance with the
provisions of the blue sky laws of any jurisdiction, as to which we express no
opinion, and other than those that have been obtained) is legally required for
the authorization of the issuance and sale of the [(2)Debentures as guaranteed
by the Guarantee] [(1)Shares] [(3)Securities, or the Shares issuable pursuant to
the Purchase Contracts].
XIII.
The statements made in the Prospectus under the headings [(1)"Description
of Common Stock"] [(2)"Description of Offered Debt Securities", "Description of
the Guarantee"] [(3)"Descripton of Common Stock", "Description of Offered Debt
Securities", "Description of the Guarantee", "Description of Stock Purchase
Contract and Stock Purchase Units"] [and _______________], insofar as they
purport to constitute summaries of the terms of the documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
XIV.
[(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.
[(1,3)The Securities have been listed, upon official notice of issuance, on
the New York Stock Exchange.]
XVI.
Except as stated or referred to in the Prospectus, there are no material
pending legal proceedings 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] [(2,3)the Securities] will conform to
specimens examined by us, [(1,3)that the certificates representing the Shares]
[(1,3)will be duly countersigned by the transfer agent and duly registered by
the registrar thereof and] [(2,3)that the Debentures will be duly authenticated
by the Trustee under the Indenture and will be delivered against payment of the
purchase price] [(3)and the Corporate Units will be duly authenticated by the
Purchase Contract Agent under the Purchase Contract Agreement and] will be
delivered against payment of the purchase price as provided in the Agreement and
that the signatures on all documents examined by us are genuine, assumptions
which we have not independently verified. [(3)In addition, we have assumed for
purposes of the opinion related to the Rights expressed herein that, prior to
the issuance of any Common Stock pursuant to the terms of the Purchase
Contracts, there shall have been no amendment or termination of the Rights
Agreement, or other action, affecting the provisions for distribution of Rights
upon issuance of Common Stock as in effect on the date hereof.] [Insert
additional assumptions, if applicable]
Other than with respect to the opinion expressed in Paragraph [XIII]
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to the matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL Group
[(2,3)and FPL Group Capital], certain of [(1)its] [(2,3)their] 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 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), that the Registration Statement, at the Effective Date,
III-6
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 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. As to all matters of New York
law, we have relied, with your consent, upon an opinion of even date herewith
addressed to you by Xxxxxx Xxxx & Priest LLP, New York, New York. As to all
matters of Florida law, Xxxxxx Xxxx & Priest LLP and Pillsbury Winthrop LLP are
hereby authorized to rely upon this opinion as though it were rendered to each
of them.
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 Underwriting
Agreement, as herein defined
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 an
aggregate 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" or the "Securities")] [(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,]
[(the "Debentures" or the "Securities")], issued under the Indenture (for
Unsecured Debt Securities), dated as of June 1, 1999 (the "Indenture"), from FPL
Group Capital to The Bank of New York, as Trustee, which Debentures are
absolutely, irrevocably and unconditionally guaranteed (the "Guarantee") by FPL
Group pursuant to that Guarantee Agreement dated as of June 1, 1999 from FPL
Group to The Bank of New York, as Guarantee Trustee (the "Guarantee Agreement")]
[(3)We have acted as 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 (the "Securities"), with such
Securities consisting of an aggregate of ________ equity units of FPL Group,
initially consisting of an aggregate 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 Securities to you in accordance with the Underwriting
Agreement, dated as of ______________ (the "Agreement"), between you [(1)and FPL
Group] [(2,3), FPL Group and FPL Group Capital]. Capitalized terms used in this
opinion but not defined shall have the meaning set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-75482 and 000-00000-00 effective on December 26, 2001, 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 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. 333-75482 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 Securities, both such
prospectus and prospectus supplement filed pursuant to Rule 424(b) under the
Securities Act ("Rule 424" and references herein to the "Prospectus" as of any
given date shall refer to such prospectus, as supplemented by the prospectus
supplement relating to the Securities filed pursuant to Rule 424, and as further
amended and supplemented to such date, including the Incorporated Documents);
[(2,3)(4) the Indenture; (5) the Guarantee Agreement;] (6) the corporate
proceedings of FPL Group with respect to the Registration Statement [(2)and the
Guarantee] [(3), the Guarantee, the Pledge Agreement, the Purchase Contract
Agreement and the Remarketing Agreement]; (7) the corporate proceedings of FPL
Group Capital with respect to the Registration Statement [(2)and the
Debentures]; [(3), the Debentures and the Remarketing Agreement]; (8) FPL
Group's Restated Articles of Incorporation as amended to the date hereof (the
"FPL Group Charter") and Bylaws as amended to the date hereof (the "FPL Group
Bylaws"); [(2,3)(9) FPL Group Capital's Articles of Incorporation as amended to
the date hereof (the "FPL Group Capital Charter") and Bylaws as amended to the
date hereof (the "FPL Group Capital Bylaws")]; [(3)(10) the Remarketing
Agreement; (11) the Pledge Agreement; (12) the Purchase Contract Agreement;]
[(1,3)(13) the Rights Agreement, dated as of July 1, 1996, 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.
On the basis of such participation and review, we advise you as follows:
I.
[(2,3)The Indenture has been duly authorized by all necessary corporate
action, has been duly and validly executed and delivered, 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 all necessary
corporate action, has been duly and validly executed and delivered, 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 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 initially comprising 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 have been duly authorized and are validly issued, fully paid
and non-assessable and the Rights are validly issued subject to the terms of the
Rights Agreement.] [(3)The Common Stock issuable pursuant to the Purchase
Contracts has been validly authorized and reserved for issuance and, when issued
and delivered by FPL Group against payment therefor in accordance with the
provisions of the Purchase Contract Agreement, the Purchase Contracts and the
Pledge Agreement, will be fully paid and non-assessable and the related Rights,
if any, when issued in accordance with the provisions of the Rights Agreement
will be validly issued subject to the terms of the Rights Agreement.] [(1,3)The
shareholders of FPL Group have no preemptive rights pursuant to Florida law, the
FPL Group Charter or the FPL Group Bylaws, or, to our knowledge, any agreement
or instrument the terms of which are known to us to which FPL Group is now a
party, to subscribe for any of the Common Stock] [(3)issuable pursuant to the
Purchase Contracts or any of the Corporate Units].
VII.
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
IV-3
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.
VIII.
Except as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, as to which we express no
opinion, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
opinion, the Registration Statement, at the Effective Date (as such term is
defined in the Agreement) and the Prospectus, at the date it was filed with the
Commission pursuant to Rule 424 (such date, the "424 Date"), complied as to form
in all material respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the Commission
thereunder. The Incorporated Documents (except as to the financial statements
and other financial or statistical data contained or incorporated by reference
therein, as to which we express no opinion), at the 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 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)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.
[(1,3)The Securities have been listed, upon official notice of issuance, on
the New York Stock Exchange.]
In rendering the foregoing opinion, we have assumed that the certificates
representing [(1,3)the Shares] [(3)and] [(2,3)the Securities] will conform to
specimens examined by us, [(3)that the certificates representing the Shares]
[(1,3)will be duly countersigned by the transfer agent and duly registered by
the registrar thereof and] [(2,3)that the Debentures will be duly authenticated
by the Trustee under the Indenture and will be delivered against payment of the
purchase price] [(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 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.
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
IV-5
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 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), 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, we have relied, with your consent,
upon an opinion of even date herewith addressed to you by Steel Xxxxxx & Xxxxx
XXX, Xxxx Xxxx Xxxxx, Xxxxxxx. 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.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
IV-6
SCHEDULE V
[LETTERHEAD OF PILLSBURY WINTHROP LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
Ladies and Gentlemen:
[(1)We have acted as counsel for you in connection with your several
purchases from FPL Group, Inc. ("FPL Group") of an aggregate 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" or the "Securities")] [(2)We have acted as counsel
for you in connection with your several purchases from FPL Group, Inc. ("FPL
Group") and FPL Group Capital Inc ("FPL Group Capital") of $___________
aggregate principal amount of its _____ Debentures, Series due
___________________ [(the "____ Debentures") and $___________ aggregate
principal of its ______ Debentures, Series due ___________________ (the "___
Debentures", together with the ___ Debentures,] [(the "Debentures" or the
"Securities")], issued under the Indenture (for Unsecured Debt Securities),
dated as of June 1, 1999 (the "Indenture"), from FPL Group Capital to The Bank
of New York, as Trustee, which Debentures are absolutely, irrevocably and
unconditionally guaranteed (the "Guarantee") by FPL Group 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
initially consisting of _______ aggregate units ("Corporate Units") with a
stated amount per Corporate Unit of $____ (the "Stated Amount") and which will
initially consist of a unit comprised of (i) a stock purchase contract (a
"Purchase Contract") for the purchase of shares of FPL Group's common stock,
$.01 par value ("Common Stock"), including the preferred share purchase rights
attached thereto (the "Rights") (collectively referred to as the "Shares") and
(ii) an interest in a ___ Debenture, Series ___________ (each such Debenture, a
"Debenture") issued by FPL Group Capital Inc ("FPL Group Capital") under the
Indenture (for Unsecured Debt Securities), 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"), which Debentures are absolutely, irrevocably and unconditionally
guaranteed (the "Guarantee") by FPL Group pursuant to, and in accordance with,
the terms of a Guarantee Agreement, dated 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")] in
accordance with the Underwriting Agreement, dated as of ______________ (the
"Agreement"), between you [(1)and FPL Group] [(2,3), FPL Group and FPL Group
Capital]. Capitalized terms used in this opinion but not defined shall have the
meaning set forth in the Agreement.
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(b)] 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(b)] of the Agreement, and we believe such
opinion to be satisfactory. We have also 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. We have assumed that the [(1,3)certificates
representing the Shares] [(2,3) and the Securities] will conform to specimens
examined by us. In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the conformity to original
documents of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such latter documents. [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. Capitalized terms used and not otherwise defined herein have the
meaning ascribed to them in the Agreement.
Based on the foregoing, we are of the opinion that:
1. [(2,3)The Indenture has been duly authorized by all necessary corporate
action, has been duly and validly 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.]
2. [(2,3)The Guarantee Agreement has been duly authorized by all necessary
corporate action, has been duly and validly executed and delivered, 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 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 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-2
5. [(3)The Corporate Units, 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. [(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. The shareholders of FPL
Group have no preemptive rights arising by law, the FPL Group Charter or the FPL
Group Bylaws, or to our knowledge otherwise, to subscribe for any of the Common
Stock issuable pursuant to the Purchase Contracts or any of the Corporate
Units.]
7. [(1)The Shares have been duly authorized and are validly issued, fully
paid and non-assessable; 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, will be validly issued subject to the terms of the Rights Agreement.]
[(1,3)The shareholders of FPL Group have no preemptive rights to subscribe for
any of the Shares] [(3)or any of the Corporate Units].
8. Registration Statement Nos. 333-_____ and 333-_____-01 and Registration
Statement Nos. 333-75482 and 000-00000-00 (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, upon which we do not pass and except for
those parts of the Registration Statement that constitute the Statements of
Eligibility on Form T-1, upon which we do not pass), 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 and
the Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein,
upon which we do not pass), 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 has become, and are, at the
Closing Date, effective under the Securities Act, and to the best of our
knowledge, no proceedings for a stop order with respect to the Registration
Statement are pending or threatened under Section 8 of the Securities Act;
9. 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
V-3
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.
10. [(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 passing upon 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 [6] above. In the course of the preparation by
FPL Group [(2,3)and FPL Group Capital] of the Registration Statement and the
Prospectus, we had conferences with certain of its officers and representatives,
with counsel for FPL Group [(2,3)and FPL Group Capital], with Deloitte & Touche
LLP, the independent public accountants who audited certain of the financial
statements included or incorporated by reference in the Registration Statement,
and with your representatives. Our examination of the Registration Statement and
the Prospectus and our discussions in the above-mentioned conferences did not
disclose to us any information, and nothing has come to our attention, which
gives us reason to believe that the Registration Statement, at the Effective
Date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, at the 424 Date or at the date
hereof, included or includes any untrue statement of a material fact or omitted
or 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 express no opinion or belief as to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement or the Prospectus or as to those portions of the
Registration Statement that constitute the Statements of Eligibility on
Form T-1.
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 previously referred to.
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,
PILLSBURY WINTHROP LLP
