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 ("Initial
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 its debt securities of the series designation[s],
with the terms and in the principal amount[s] specified in Schedule I hereto
(the "Debentures"). 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). [modify to reflect
transaction: The Initial Securities will initially consist of (a) _______
aggregate units ("Type A Securities") with a stated amount per Type A Security
of $__ (the "Stated Amount"), and (b) ______ aggregate units ("Type B
Securities") with a stated amount per Type B Security equal to the Stated Amount
(collectively, the "Securities").] [(1)FPL Group hereby confirms its agreement
with the several Underwriters (as defined below) as set
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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.
forth herein.] [(2),(3)Each of FPL Group and FPL Group Capital hereby confirms
its agreement with the several Underwriters (as defined below) as set forth
herein.]
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 [7] 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 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 Type A Security will initially consist of a unit
comprised of (a) a stock purchase contract (a "Purchase Contract") for the
purchase of shares of FPL Group's common stock, $.01 par value (the "Common
Stock"), including the preferred share purchase rights attached thereto (the
"Rights") (collectively referred to as the "Shares") and (b) an interest in a
___ Debenture, Series due ____________ (each such Debenture, a "Debenture")
issued by FPL Group Capital under the 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 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. Each Type B Security will initially
consist of a unit comprised of (a) a Purchase Contract and (b) a ____ undivided
interest in a zero-coupon U.S. Treasury Security (CUSIP No. _____) in a
principal amount equal to $1,000 payable on ___________ (each such Treasury
Security, a "Treasury Security"). Under each Purchase Contract, pursuant to the
terms of a Purchase Contract Agreement, dated as of ____________,
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between ____________, as Purchase Contract Agent, and FPL Group (the "Purchase
Contract Agreement"), (i) the holder of a Type A Security or a Type B Security
will purchase from FPL Group on __________ (the "Purchase Contract Settlement
Date"), for an amount of cash equal to the Stated Amount, a number of newly
issued shares of Common Stock determined as provided in the Purchase Contract
Agreement and (ii) with respect to [Type A Securities and Type B Securities],
[FPL Group] will pay the holder unsecured contract adjustment payments
("Contract Adjustment Payments"), if any, at the rate of __% of the Stated
Amount per annum. In accordance with the terms of the Purchase Contract
Agreement, the Debentures constituting a part of the Type A Securities and the
Treasury Securities constituting part of the Type B Securities will be pledged
by the Purchase Contract Agent, on behalf of the holders of the Securities, 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' obligation to purchase Common Stock
pursuant to the Purchase Contract. Under certain circumstances, the Debentures
will be subject to remarketing pursuant to a Remarketing Agreement, dated as of
___________, among _______________, [FPL Group] and FPL Group Capital (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-_____ and 333-_____-01"), 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 ("Debentures"); (ii) FPL Group's guarantee relating to
the Debentures ("Guarantee"); (iii) FPL Group's 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 Debentures or debt securities of third
parties, including U.S. Treasury securities ("Stock Purchase Units").
Such registration statement has been declared effective by the
Commission. References herein to the term "Registration Statement" as
of any given date shall mean Registration Statement Nos. 333-_____ and
333-_____-01, 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"). References herein
to the term "Prospectus" as of any given date shall mean the
prospectus forming a part of Registration Statement Nos. 333-_____ and
333-_____-01, as supplemented by a prospectus supplement relating to
the Debentures [(3), Shares and Type A Securities and Type B
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 Debentures
[(3), the Shares or the Type A Securities and the Type B Securities]
or (ii) when referring to the Prospectus relating to a particular
offering of the Debentures, [(3)Shares, Debentures, Stock Purchase
Contracts or Stock Purchase Units,] other than the Debentures [(3)[,]
the Shares or the Type A Securities and the Type B Securities] being
offered on such date), including all Incorporated
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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 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.
(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
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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.
(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:
5
(a) FPL Group has filed with the [(1)Securities and Exchange
Commission (the "Commission")] [(2),(3)the Commission] a joint
registration statement with FPL Group Capital [(1)Inc, a Florida
corporation ("FPL Group Capital") and a wholly-owned subsidiary of FPL
Group] on Form S-3, including a prospectus (the "Registration
Statement Nos. 333-_____ and 333-_____-01"), 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),3Debentures];
(ii) FPL Group's [1guarantee 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. [(1)References herein to the
term "Registration Statement" as of any given date shall mean
Registration Statement Nos. 333-_____ and 333-_____-01, 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"). References herein to the term "Prospectus"
as of any given date shall mean the 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 Act ("Rule 424"), and as further amended
or supplemented as of such date (other than amendments or supplements
relating to securities 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
6
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 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 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
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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]. [(2),(3)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 material adverse effect on the business, properties or
financial condition of FPL Group and its subsidiaries taken as a
whole.
(g) FPL Group and 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.
(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.]
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(j) 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 set forth, 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)Type A Securities [and Type B Securities]]. [(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, and that any
Underwriter may allow, and such dealer may reallow, a concession, not in excess
of $____ per [(1)share] [(3)unit], to other Underwriters or certain other
dealers.]
[(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 and Treasury Securities constituting a part
of the Type A Securities and Type B Securities will be pledged, together with
other collateral, to the Collateral Agent to secure holders' obligations to
purchase Common Stock under the Purchase Contracts. Such pledge shall be
effected by: (i) the delivery to the Collateral Agent of the Debentures to be
pledged in certificated form endorsed in blank and (ii) the transfer to the
Collateral Agent of the Treasury Securities to be pledged, 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 and the Treasury Securities constituting a part of the Type A
Securities and Type B Securities, respectively], shall be made at the time, date
and place set forth in Schedule I, or at such other time, date or place as shall
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),(3)FPL Group] [(2)FPL Group Capital] shall
otherwise agree. For the purpose of expediting the checking of the Securities by
the Representatives on behalf of the Underwriters, [(1),(3)FPL Group] [(2)FPL
Group Capital] agrees to make such Securities available to the Representatives
for such purpose at the offices of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇
▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not later than 2:00 P.M., New York City time,
on the business day preceding the Closing Date, or at such other time, date and
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.
7. Covenants of FPL Group [(2)and FPL Group Capital]. FPL Group
[(2),(3)and FPL Group Capital] [(1)agrees] [(2),(3)agree] with the several
Underwriters that:
10
(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. FPL Group [(2),(3)and FPL Group Capital] will
promptly advise the Representatives of the issuance of any stop order
under the Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which it shall have
received notice prior to the termination of the offering of the
Securities hereunder. FPL Group [(2),(3)and FPL Group Capital] will
[(2),(3)each] use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof, if issued.
(c) [(1),(3)FPL Group] [(2)FPL Group Capital] will pay 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 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,
11
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading; provided that should such event relate
solely to activities of any of the Underwriters, then the Underwriters
shall assume the expense of preparing and furnishing copies of any
such amendment or supplement. In case any Underwriter is required to
deliver a Prospectus after the expiration of nine months after the
date of this agreement, [(1),(3)FPL Group] [(2)FPL Group Capital] upon
the request of the Representatives will furnish to the
Representatives, at the expense of such Underwriter, a reasonable
quantity of a supplemented or amended Prospectus or supplements or
amendments to the Prospectus complying with Section 10 of the
Securities Act.
(e) [(1),(3)FPL Group] [(2)FPL Group Capital] will furnish such
proper information as may be lawfully required and otherwise cooperate
in qualifying the Securities for offer and sale under the blue sky
laws of such jurisdictions as the Representatives may designate and
will pay 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 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. The several obligations
of the Underwriters to purchase and pay for the Securities shall be subject to
the accuracy of, and compliance with, the representations and warranties of FPL
Group [(2),(3)and FPL Group Capital] herein on the Closing Date, 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) 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 dated the Closing
Date and signed by an officer of FPL Group [(2),(3)and FPL
12
Group Capital] 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.
(b) On the Closing Date, the Representatives shall have received
from Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL Group [(2),(3)and FPL
Group Capital], ▇▇▇▇▇▇ ▇▇▇▇ & 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.
(c) 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 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
13
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 benefit 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.
(d) 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 reflected 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 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].
(e) 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.
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.
14
9. Condition of FPL Group's [(2),(3)and FPL Group Capital's]
Obligations. The obligation 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 against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law
and to reimburse each such Underwriter, officer, director and
controlling person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) when and as
incurred by them in connection with investigating any such losses,
claims, damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus (if used prior to the Effective Date of the
Registration Statement), including all Incorporated Documents, or in
the Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that the indemnity agreement contained
in this subsection (a) of Section [10] shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising out
of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement
or omission was made in reliance upon and in conformity with
information furnished herein, to FPL Group [(2),(3)or FPL Group
Capital] in writing 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, the Guarantee
Agreement and the Purchase Contract Agreement; and
15
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 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, each other Under-
writer, and each person who controls any thereof within the meaning of
Section 15 of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the 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 any thereof. The
Underwriters hereby furnish to FPL Group [(2),(3)and FPL Group
Capital] expressly for use in the Registration Statement and
16
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 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
may be sought under the indemnification provisions of Section [10] of
this agreement, it will promptly give written notice of the
commencement thereof to the party or parties against whom indemnity
shall be sought thereunder, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they
may have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be
so given, such indemnifying party 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 [the] [an] indemnifying party shall elect not
to assume the defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the reasonable fees
and expenses of any counsel retained by them; provided, however, if
the defendants in any such action include both the indemnified party
and the indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict of
interest 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 in respect of which such party
intends to seek indemnity under the indemnification provisions of
17
Section [10] of this agreement, unless such settlement, compromise or
consent (i) includes an unconditional release of such other parties
from all liability arising out of such claim 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 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 each indemnifying party on the one hand and the indemnified party
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
such indemnifying party or the indemnified party 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 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
18
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 [▇▇▇▇▇'▇ Investor Service, Inc.
("Moody's")] or [Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇ 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 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 ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
19
If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
FPL Group, Inc.
By:________________________
Name:
Title:
[(2),(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.
20
SCHEDULE I
Underwriting Agreement dated __________________
Registration Statement Nos. 333-_____ and 333-_____-01
Representatives and Addresses:
Securities:
Designation:
[(1)Number of Shares]
[(2)Principal Amount]
[(3)Number of Units]
[(3)Aggregate Stated Amount]
[(2)Date of Maturity]
[(2)Interest Rate]
Purchase Price:
Underwriting Commissions (payable by [(1),(3)FPL Group]
[(2)FPL Group Capital]):
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 ▇▇▇▇▇▇ & ▇▇▇▇▇ 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") 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") 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") in connection with the authorization and
issuance by FPL Group of its new securities ("Initial Securities"), with such
Initial Securities initially consisting of (a) _______ aggregate units ("Type A
Securities") with a stated amount per Type A Security 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 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") and (b)
______ aggregate units ("Type B Securities") with a stated amount per Type B
Security equal to the Stated Amount and which will initially consist of a unit
comprised of (i) a Purchase Contract and (ii) an undivided interest in a
zero-coupon U.S. Treasury Security,] and in
connection with the sale of the [Initial] 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-__________ and 333-_____-01 effective on _______________
which registration statement was filed 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") (references herein to the term "Registration Statement" as of any given
date shall mean Registration Statement Nos. 333-______ and 333-_____-01 as
amended and supplemented to such date, including those documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents")); (2) the prospectus dated
______________ forming a part of Registration Statement Nos. 333-______ and
333-_____-01, as supplemented by a prospectus supplement dated ___________
relating to the [(3)Initial] 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
[(3)Initial] Securities filed pursuant to Rule 424, and as further amended and
supplemented to such date, including the Incorporated Documents); [(2),(3)(3)
the Indenture; (4) the Guarantee Agreement;] (5) 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]; (6) the corporate proceedings of FPL Group Capital
with respect to the Registration Statement [(2)and the Debentures]; [(3), the
Debentures and the Remarketing Agreement]; (7) FPL Group's Restated Articles of
Incorporation as amended to the date hereof (the "FPL Group Charter") and
By-laws as amended to the date hereof (the "FPL Group By-laws"); [(2),(3)(8) FPL
Group Capital's Articles of Incorporation as amended to the date hereof (the
"FPL Group Capital Charter") and By-laws as amended to the date hereof (the "FPL
Group Capital By-laws")]; [(3)(9) the Remarketing Agreement; (10) the Pledge
Agreement; (11) the Purchase Contract Agreement;] [(1),(3)(12) 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"); (13) the
corporate proceedings of FPL Group with respect to the Rights Agreement and the
Amendment to Rights Agreement;] and (14) 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.]
III-2
[(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 the 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 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 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.]
IV.
[(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.]
V.
[(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
III-3
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 Type A Securities
or the Type B Securities].
VI.
[(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.]
VII.
To the best of our knowledge, [(2),(3)FPL Group Capital and its direct
significant subsidiaries (as defined in Regulation S-X promulgated under the
Securities Act ("Regulation S-X")) have good and marketable title to all of the
capital stock or other ownership interests of their respective direct
significant subsidiaries (as defined in Regulation S-X) free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof, and] FPL Group and its direct significant subsidiaries (as defined in
Regulation S-X [(1)promulgated under the Securities Act ("Regulation S-X")])
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.
III-4
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 By-laws [(2),(3)or the FPL Group Capital Charter or the FPL
Group Capital By-laws], 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),(3)Securities] [(3), or the Shares issuable
pursuant to the Purchase Contracts].
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.
The Agreement has been duly and validly authorized, executed and
delivered by FPL Group [(2),(3)and FPL Group Capital].
III-5
XIV.
[(1),(3)The [(3)Initial] Securities have been listed, upon official
notice of issuance, on the New York Stock Exchange.]
XV.
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
[(1),(3)certificates representing the Shares] [(3) and the Initial]
[(2),(3)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)will be
duly authenticated by the Trustee under the Indenture and] [(3)that the
Debentures will be duly authenticated by the Trustee under the Indenture and the
Type A Securities and Type B Securities 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 this 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 [XI]
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to the other 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, 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
III-6
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 ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York. As to
all matters of Florida law, ▇▇▇▇▇▇ ▇▇▇▇ & 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 ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
III-7
SCHEDULE IV
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇ & 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 counsel to FPL Group, Inc. ("FPL Group") 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") 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") in connection with the authorization and
issuance by FPL Group of its new securities ("Initial Securities"), with such
Initial Securities initially consisting of (a) _______ aggregate units ("Type A
Securities") with a stated amount per Type A Security 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 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") and (b)
______ aggregate units ("Type B Securities") with a stated amount per Type B
Security equal to the Stated Amount and which will initially consist of a unit
comprised of (i) a Purchase
Contract and (ii) an undivided interest in a zero-coupon U.S. Treasury
Security,] and in connection with the sale of the [Initial] 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-__________ and 333-_____-01 effective on _______________
which registration statement was filed 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") (references herein to the term "Registration Statement" as of any given
date shall mean Registration Statement Nos. 333-______ and 333-_____-01 as
amended and supplemented to such date, including those documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents")); (2) the prospectus dated
______________ forming a part of Registration Statement Nos. 333-______ and
333-_____-01, as supplemented by a prospectus supplement dated ___________
relating to the [(3)Initial] 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
[(3)Initial] Securities filed pursuant to Rule 424, and as further amended and
supplemented to such date, including the Incorporated Documents); [(2),(3)(3)
the Indenture; (4) the Guarantee Agreement;] (5) 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]; (6) the corporate proceedings of FPL Group Capital
with respect to the Registration Statement [(2)and the Debentures]; [(3), the
Debentures and the Remarketing Agreement]; (7) FPL Group's Restated Articles of
Incorporation as amended to the date hereof (the "FPL Group Charter") and
By-laws as amended to the date hereof (the "FPL Group By-laws"); [(2),(3)(8) FPL
Group Capital's Articles of Incorporation as amended to the date hereof (the
"FPL Group Capital Charter") and By-laws as amended to the date hereof (the "FPL
Group Capital By-laws"); [(3)(9) the Remarketing Agreement; (10) the Pledge
Agreement; (11) the Purchase Contract Agreement;] [(1),(3)(12) 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"); (13) the
corporate proceedings of FPL Group with respect to the Rights Agreement and the
Amendment to Rights Agreement;] and (14) 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 instrument enforceable in accordance with its terms, except as
limited or affected by bankruptcy, insolvency,
IV-2
reorganization, receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of equity.]
II.
[(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.]
III.
[(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, 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 Type A Securities or the Type B
Securities].
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.
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) 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.
VI.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statements of Eligibility on Form T-1, as to which we
express no opinion, the Registration Statement, at the Effective Date (as such
term is
IV-3
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.
VII.
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 By-laws [(2),(3)or the FPL Group Capital Charter or the FPL
Group Capital By-laws], 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].
VIII.
To the best of our knowledge, no approval, authorization, consent or
order of any public board or body (other than in connection or in compliance
with the provisions of the blue sky laws of any jurisdiction, as to which we
express no opinion, and other than those that have been obtained) is legally
required for the authorization of the issuance and sale of the [(2)Debentures as
guaranteed by the Guarantee] [(1),(3)Securities] [(3), or the Shares issuable
pursuant to the Purchase Contracts].
IX.
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.
IV-4
X.
[(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.]
XI.
The Agreement has been duly and validly authorized, executed and
delivered by FPL Group [(2),(3)and FPL Group Capital].
XII.
[(1),(3)The [(3)Initial] Securities have been listed, upon official
notice of issuance, on the New York Stock Exchange.]
XIII.
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
[(1),(3)certificates representing the Shares] [(3) and the Initial]
[(2),(3)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)will be
duly authenticated by the Trustee under the Indenture and] [(3)that the
Debentures will be duly authenticated by the Trustee under the Indenture and the
Type A Securities and Type B Securities 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 this 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 III herein is subject to the same
limitations and qualifications contained in the opinion of Steel, ▇▇▇▇▇▇ & ▇▇▇▇▇
LLP referred to below.
Other than with respect to the opinion expressed in Paragraph [IX]
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information
IV-5
furnished with respect to the other 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,
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 and as to all opinions expressed in
Paragraph III above, we have relied, with your consent, upon an opinion of even
date herewith addressed to you by Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇. As to all matters of New York law, Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP is hereby
authorized to rely upon this opinion as though it were rendered to Steel ▇▇▇▇▇▇
& ▇▇▇▇▇ LLP.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & 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 ("Initial Securities"), with such Initial
Securities initially consisting of (a) _______ aggregate units ("Type A
Securities") with a stated amount per Type A Security 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") and (b) ______ aggregate units ("Type B Securities") with a stated
amount per Type B Security equal to the Stated Amount and which will initially
consist of a unit comprised of (i) a Purchase Contract and (ii) an undivided
interest in a zero-coupon U.S. Treasury Security] 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 ▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇ & 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] [(3)and the Initial]
[(2),(3)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 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.]
3. [(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
V-2
Group have no preemptive rights to subscribe for any of the Shares] [(3)or any
of the Type A Securities or the Type B Securities].
4. [(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.]
5. Registration Statement Nos. 333-_____ and 333-_____-01
(collectively, the "Registration Statement"), at the Effective Dates, 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;
6. 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.
7. (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.]
8. The Agreement has been duly and validly authorized, executed and
delivered by FPL Group [(2),(3)and FPL Group Capital].
In passing upon the form of the Registration Statements 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 Statements and the
Prospectus, we had conferences with certain of its officers and representatives,
with counsel for
V-3
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 Statements, and with
your representatives. Our examination of the Registration Statements 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 Statements, 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 Statements or the Prospectus or as to those portions of the
Registration Statements that constitute the Statements of Eligibility on Form
T-1.
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
V-4
