EXHIBIT 1(d)
FLORIDA POWER & LIGHT COMPANY
PREFERRED STOCK
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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. Florida Power & Light Company, a Florida corporation
("FPL"), proposes to issue and sell shares of its serial preferred stock, [$100]
[without] par value, with the terms and in the amount specified in Schedule I
hereto (the "Preferred Stock" or the "Shares") FPL hereby confirms its agreement
with the several Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to mean the
entity or several entities named in Schedule II hereto and any underwriter
substituted as provided in Section 4 hereof and the term "Underwriter" shall be
deemed to mean one of such Underwriters. If the entity or entities listed in
Schedule I hereto (the "Representatives") are the same as the entity or entities
listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such entity
or entities. The Representatives represent that they have been authorized by
each Underwriter to enter into this agreement on behalf of such Underwriter and
to act for it in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one entity is named in
Schedule I hereto, any action under or in respect of this agreement may be taken
by such entities jointly as the Representatives or by one of the entities acting
on behalf of the Representatives and such action will be binding upon all the
Underwriters.
2. Representations and Warranties of FPL. FPL represents and warrants
to the several Underwriters that:
(a) FPL has, together with Florida Power & Light Company Trust I,
a Delaware statutory trust ("Florida Power & Light Company Trust I")
and Florida Power & Light Company Trust II, a Delaware statutory trust
("Florida Power & Light Company Trust II," and together with Florida
Power & Light Company Trust I, the "Trusts"), filed with the
Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3, including a prospectus
("Registration Statement Nos. 333-________, 333-______-01 and
333-_______-02"), for the registration under the Securities Act of
1933, as amended (the "Securities Act"), of (a) $1,000,000,000
aggregate amount of (i) FPL's first mortgage bonds ("First Mortgage
Bonds"), (ii) Preferred Stock, (iii) FPL subordinated debentures
("Subordinated Debentures") and (iv) preferred trust securities of the
Trusts ("Preferred Trust Securities") and (b) FPL's guarantee of the
Preferred Trust Securities (the "Trust Guarantee"). [None]
[$__________] of the $1,000,000,000 aggregate amount of securities
registered with the Commission under the Securities Act pursuant to
Registration Statement Nos. 333-________, 333-______-01 and
333-_______-02 [has] [have] been previously issued. Such registration
statement has been declared effective by the Commission and no stop
order suspending such effectiveness has been issued under the
Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of FPL, threatened by
the Commission. References herein to the term "Registration Statement"
as of any given date shall mean Registration Statement Nos.
333-________, 333-______-01 and 333-_______-02, as amended or
supplemented to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 12 of Form S-3
("Incorporated Documents"); provided that if FPL files a joint
registration statement with the Trusts with the Commission pursuant to
Rule 462(b) under the Securities Act (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b) Registration
Statement. References herein to the term "Prospectus" as of any given
date shall mean the prospectus forming a part of Registration
Statement Nos. 333-________, 333-______-01 and 333-_______-02, 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 (i) securities other than the Shares or (ii) when
referring to the Prospectus relating to a particular offering of the
Shares, Shares other than the Shares being offered on such date),
including all Incorporated Documents. References herein to the term
"Effective Date" shall be deemed to refer to the later of the time and
date that Registration Statement Nos. 333-________, 333-______-01 and
333-_______-02 was declared effective and the time and date of the
filing thereafter of FPL's most recent Annual Report on Form 10-K, if
such filing is made prior to the Closing Date (as hereinafter
defined). The prospectus supplement relating to the Shares proposed to
be filed pursuant to Rule 424 shall be substantially in the form
delivered to the Representatives prior to the execution of this
agreement. Prior to the termination of the offering of the Shares, FPL
will not file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus without prior notice to the
Representatives and to Hunton & Williams 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. Each of the Underwriters acknowledges
that subsequent to the Closing Date, FPL may file a post-effective
amendment to the Registration Statement in order to file one or more
unqualified opinions of counsel pursuant to Rule 462(d) under the
Securities Act.
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(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, both 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 by or on behalf of any Underwriter through the Representatives
expressly for use in connection with the preparation of the
Registration Statement or the Prospectus, or to any statements in or
omissions from the Statements of Eligibility on Form T-1, or
amendments thereto, filed as exhibits to the Registration Statement
or incorporated into the Registration Statement (collectively, the
"Statements of Eligibility") or to any statements or omissions made in
the Registration Statement or the Prospectus relating to The
Depository Trust Company ("DTC") Book-Entry-Only System that are based
solely on information contained in published reports of DTC.
(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 and
its subsidiaries taken as a whole at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved except as otherwise indicated in the Registration Statement;
and Deloitte & Touche LLP, who have audited the audited financial
statements of FPL, 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 and its
subsidiaries taken as a whole, whether or not in the ordinary course
of business, nor has any transaction been entered into by FPL or any
of its subsidiaries that is material to FPL and its subsidiaries taken
as a whole, other than changes and transactions contemplated by the
Registration Statement and Prospectus, and transactions in the
ordinary course of business. FPL and its subsidiaries have no
contingent obligation material to FPL and its subsidiaries taken as a
whole, which is not disclosed in or contemplated by the Registration
Statement and Prospectus.
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(e) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by FPL, and the
fulfillment of the terms hereof on the part of FPL to be fulfilled
have been duly authorized by all necessary corporate action of FPL in
accordance with the provisions of its Restated Articles of
Incorporation, as amended (the "FPL Charter"), by-laws and applicable
law. The execution and delivery of the Shares and the performance by
FPL of its obligations thereunder do not require any consent,
approval, authorization, registration or qualification of or by any
governmental agency or body other than (i) those consents, approvals,
authorizations, registrations or qualifications as have already been
obtained, and (ii) the filing of Articles of Amendment to the FPL
Charter relating to the Shares with the appropriate office of the
Department of State, State of Florida which shall be filed by FPL
prior to the Closing Date.
(f) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by FPL and the
fulfillment of the terms hereof on the part of FPL to be fulfilled
will not result in a breach of any of the terms or provisions of, or
constitute a default under, the FPL Charter or by-laws, or any
indenture, mortgage, deed of trust or other agreement or instrument to
which FPL or any of its subsidiaries is now a party, or violate any
law or any order, rule, decree or regulation applicable to FPL or any
of its subsidiaries of any federal or state court, regulatory board or
body or administrative agency having jurisdiction over FPL or its
subsidiaries or any of their respective property, except where such
breach, default or violation would not have a material adverse effect
on the business, properties or financial condition of FPL and its
subsidiaries taken as a whole.
(g) FPL has no direct or indirect significant subsidiaries (as
defined in Regulation S-X (17 CFR Part 210)).
(h) FPL 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, 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) The Preferred Stock has been validly authorized and, when
issued and delivered by FPL against payment therefor in accordance
with the provisions of this agreement, will be fully paid and
non-assessable.
(j) FPL is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended ("1940 Act").
3. Purchase and Sale. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions in this
agreement, FPL agrees to sell to the respective Underwriters named in Schedule
II hereto, severally and not jointly, and the respective Underwriters agree,
severally and not jointly, to purchase from FPL the respective number of Shares
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set forth opposite their respective names in Schedule II hereto at the purchase
price[s] for those Shares set forth in Schedule I hereto.
The Underwriters agree to make a bona fide public offering of the
Shares. The Underwriters have advised FPL that the Shares will be offered to the
public at $___ per share and to certain dealers selected by the Representatives
at a price which represents a concession not in excess of $____ per share under
the public offering price.
4. Time, Date and Place of Closing, Default of Underwriter. Delivery of
the Shares, and payment therefor by wire transfer in federal funds, shall be
made at the time, date and place set forth in Schedule I hereto, or at such
other time, date or place as may be agreed upon in writing by FPL and the
Representatives. The time and date of such delivery and payment are herein
called the "Closing Date."
The Shares shall be delivered to the Representatives for the respective
accounts of the Underwriters against payment by the several Underwriters through
the Representatives of the purchase price therefor. Delivery of the Shares shall
be made through the facilities of DTC unless the Representatives and FPL shall
otherwise agree. For the purpose of expediting the checking of the Shares by the
Representatives on behalf of the Underwriters, FPL agrees to make such Shares
available to the Representatives for such purpose at the offices of Thelen Reid
& Priest LLP, 875 Third Avenue, New York, New York 10022, not later than 2:00
P.M., New York City time, on the business day preceding the Closing Date, or at
such other time, date or place as may be agreed upon by FPL and the
Representatives.
If any Underwriter shall fail to purchase and pay for the number of the
Shares which such Underwriter has agreed to purchase and pay for hereunder
(otherwise than by reason of any failure on the part of FPL to comply with any
of the provisions contained herein), the non-defaulting Underwriters shall be
obligated to purchase and pay for (in addition to the respective number of the
Shares set forth opposite their respective names in Schedule II hereto) the
number of the Shares which such defaulting Underwriter or Underwriters failed to
purchase and pay for, up to a number thereof equal to, in the case of each such
remaining Underwriter, ten percent (10%) of the aggregate number of the Shares
set forth opposite the name of such remaining Underwriter in said Schedule II,
and such remaining Underwriters shall have the right, within 24 hours of receipt
of such notice, either to (i) purchase and pay for (in such proportion as may be
agreed upon among them) the remaining number of the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, or (ii) substitute
another Underwriter or Underwriters, satisfactory to FPL, to purchase and pay
for, the remaining number of the Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase. If any of the Shares still remain
unpurchased, then FPL shall be entitled to a further period of 24 hours within
which to procure another party or other parties, members of the National
Association of Securities Dealers, Inc. (or, if not members of such Association,
who are not eligible for membership in said Association and who agree (i) to
make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein and (ii) in making sales
to comply with said Association's Conduct Rules) and satisfactory to the
Representatives to purchase such Shares on the terms herein set forth. In the
event that, within the respective prescribed periods, (i) the non-defaulting
Underwriters notify FPL that they have arranged for the purchase of such Shares
or (ii) FPL notifies the non-defaulting Underwriters that it has arranged for
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the purchase of such Shares, the non-defaulting Underwriters or FPL shall have
the right to postpone the Closing Date for a period of not more than three full
business days beyond the expiration of the respective prescribed periods in
order to effect whatever changes may thus be made necessary in the Registration
Statement, the Prospectus or in any other documents or arrangements. In the
event that neither the non-defaulting Underwriters nor FPL has arranged for the
purchase of such Shares by another party or parties as above provided, then this
agreement shall terminate without any liability on the part of FPL or any
Underwriter (other than an Underwriter which shall have failed or refused,
otherwise than for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations hereunder, to
purchase and pay for the Shares which such Underwriter has agreed to purchase as
provided in Section 3 hereof), except as otherwise provided in Section 8 and
subsections (c) and (e) of Section 5 hereof.
5. Covenants of FPL. FPL agrees with the several Underwriters that:
(a) FPL will promptly file the Prospectus with the Commission
pursuant to Rule 424 under the Securities Act.
(b) FPL 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 FPL to be in the form as
originally filed, including all Incorporated Documents and exhibits,
except those incorporated by reference, which relate to the Shares,
including a signed or conformed copy of each consent and certificate
included therein or filed as an exhibit thereto. As soon as
practicable after the date of this agreement, FPL will deliver to the
Underwriters through the Representatives as many copies of the
Prospectus as the Representatives may reasonably request for the
purposes contemplated by the Securities Act.
(c) FPL will pay or cause to be paid all expenses in connection
with the (i) preparation and filing of the Registration Statement and
Prospectus, (ii) issuance and delivery of the Shares as provided in
Section 4 hereof, and (iii) printing and delivery to the
Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement and the
Prospectus. FPL will pay or cause to be paid all taxes, if any (but
not including any transfer taxes), on the issuance of the Shares. FPL
shall not, however, be required to pay any amount for any expenses of
the Representatives or any of the Underwriters, except that if this
agreement shall be terminated in accordance with the provisions of
Sections 6, 7 or 9 hereof, FPL will pay or cause to be paid the fees
and disbursements of Counsel for the Underwriters, whose fees and
disbursements the Underwriters agree to pay in any other event and FPL
shall reimburse 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. FPL
shall 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 shall occur
which, in the opinion of FPL, should be set forth in a supplement to
or an amendment of the Prospectus in order to make the Prospectus not
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misleading in the light of the circumstances when it is delivered to a
purchaser, FPL 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 an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading; provided that
should such event relate solely to activities of any of the
Underwriters, then the Underwriters shall assume the expense of
preparing and furnishing copies of any such amendment or supplement.
In case any Underwriter is required to deliver a Prospectus after the
expiration of nine months after the date of this agreement, FPL upon
the request of the Representatives will furnish to the
Representatives, at the expense of such Underwriter, a reasonable
quantity of a supplemented or amended Prospectus or supplements or
amendments to the Prospectus complying with Section 10 of the
Securities Act.
(e) FPL will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Shares for offer
and sale under the blue sky laws of such jurisdictions as the
Representatives may designate and will pay or cause to be paid filing
fees and expenses (including fees of counsel not to exceed $5,000 and
reasonable disbursements of counsel), provided that FPL shall not be
required to qualify as a foreign corporation or dealer in securities,
or to file any consents to service of process under the laws of any
jurisdiction, or to meet other requirements deemed by FPL to be unduly
burdensome.
(f) FPL will timely file such reports pursuant to the Exchange
Act as are necessary in order to make generally available to its
security holders (including holders of the Shares) 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 will advise the Representatives promptly of the filing of
the Prospectus pursuant to Rule 424 and of any amendment or supplement
to the Prospectus or Registration Statement or, prior to the
termination of the offering of the Shares hereunder, of official
notice of the institution of proceedings for, or the entry of, a stop
order suspending the effectiveness of the Registration Statement and,
if such a stop order should be entered, use every commercially
reasonable effort to obtain the prompt removal thereof.
(h) FPL will use its commercially reasonable best efforts to
deliver, in appropriate form for filing, to the Department of State of
Florida on or before the Closing Date the articles of amendment
required by Section 607.0602, Florida Statues, which are effective to
establish and designate the Shares and determine their relative
rights, preferences and limitations, and will use its commercially
reasonable best efforts to have such amendment accepted for filing by
such Department of State on or before the Closing Date.
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6. Conditions of Underwriters' Obligations to Purchase and Pay for the
Shares. The several obligations of the Underwriters to purchase and pay for the
Shares shall be subject to the performance by FPL of its obligations to be
performed hereunder on or prior to the Closing Date and to the following
conditions:
(a) The representations and warranties made by FPL herein shall
be true and correct in all material respects as of the Closing Date as
if made on and as of such date and the Representatives shall have
received, prior to payment for the Shares, a certificate from FPL
dated the Closing Date and signed by an officer of FPL to that effect.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date; no
order of the Commission directed to the adequacy of any Incorporated
Document shall be in effect on the Closing Date; no proceedings for
either such purpose shall be pending before, or threatened by, the
Commission on such date; and the Representatives shall have received,
prior to payment for the Shares, a certificate from FPL dated the
Closing Date and signed by an officer of FPL to the effect that, to
the best of his or her knowledge, no such order is in effect and no
proceedings for either such purpose are pending before, or to the
knowledge of FPL threatened by, the Commission.
(c) On the Closing Date, there shall be in full force and effect
an authorization of the Florida Public Service Commission with respect
to the issuance and sale of the Shares on the terms herein stated or
contemplated, and containing no provision unacceptable to the
Representatives by reason of the fact that it is materially adverse to
FPL, it being understood that no authorization provided to Counsel for
the Underwriters and in effect at the date of this agreement contains
any such unacceptable provision.
(d) On the Closing Date, the Representatives shall have received
from Steel Hector & Davis LLP, counsel to FPL, Thelen Reid & Priest
LLP, co-counsel to FPL, and Hunton & Williams 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 and the Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Shares shall
be supplemented or amended after the Prospectus shall have been filed
with the Commission pursuant to Rule 424, with any changes therein
necessary to reflect such supplementation or amendment.
(e) 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 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 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, and in Statement on Auditing Standards No. 100,
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Interim Financial Information, on the unaudited condensed consolidated
financial statements of FPL, if any, incorporated by reference in the
Prospectus, a reading of the latest available interim unaudited
condensed consolidated financial statements of FPL since the close of
FPL's most recent audited fiscal year, the minutes and consents of the
Board of Directors, the Finance Committee of the Board of Directors,
the Stock Issuance Committee of the Board of Directors, and the sole
common shareholder of FPL since the end of the most recent audited
fiscal year, and inquiries of officials of FPL who have responsibility
for financial and accounting matters (it being understood that the
foregoing procedures do not constitute an audit made in accordance
with 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, if any,
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
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 common stock or additional paid-in capital, increase in
the preferred stock or long-term debt of FPL and its subsidiaries, or
decrease in FPL's common shareholders' equity, in each case as
compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Prospectus, except in all
instances for changes, increases or decreases which the Prospectus
discloses have occurred or may occur, or as occasioned by the
declaration, provision for, or payment of dividends, or which are
described in such letter; or (c) for the period from the date of the
most recent [condensed] consolidated balance sheet incorporated by
reference in the Prospectus to the latest available interim balance
sheet read by them and for the period from the date of the latest
available interim balance sheet read by them to a specified date not
more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding
year, in total consolidated operating revenues or in net income or net
income available to FPL Group, Inc., 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.
(f) 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 FPL and
its subsidiaries taken as a whole, except as disclosed in or
contemplated by the Registration Statement and Prospectus, and (ii)
there shall have been no material transaction entered into by FPL or
any of its subsidiaries that is material to FPL and its subsidiaries
9
taken as a whole, other than transactions disclosed in or contemplated
by the Registration Statement and the Prospectus, and transactions in
the ordinary course of business; and at the Closing Date, the
Representatives shall have received a certificate to such effect from
FPL signed by an officer of FPL.
(g) All legal proceedings to be taken in connection with the
issuance and sale of the Shares shall have been satisfactory in form
and substance to Counsel for the Underwriters.
(h) [The Shares shall have been approved for listing on The New
York Stock Exchange, Inc. ("NYSE") upon official notice of issuance.]
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled, this agreement may be terminated by the Representatives
upon mailing or delivering written notice thereof to FPL. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in subsections (c) and (e) of Section 5 hereof.
7. Condition of FPL's Obligations. The obligation of FPL to deliver the
Shares shall be subject to the following condition:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date; no
order of the Commission directed to the adequacy of any Incorporated
Document shall be in effect on the Closing Date, and no proceedings
for either such purpose shall be pending before, or threatened by, the
Commission on such date.
(b) On the Closing Date there shall be in full force and effect
an authorization of the Florida Public Service Commission with respect
to the issuance and sale of the Shares on the terms herein stated or
contemplated, and containing no provision unacceptable to FPL by
reason of the fact that it is materially adverse to FPL, it being
understood that no authorization in effect at the date of this
agreement contains any such unacceptable provision.
In case the conditions specified above in this Section 7 shall not have
been fulfilled, this agreement may be terminated by FPL upon mailing or
delivering written notice thereof to the Representatives. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in subsections (c) and (e) of Section 5 hereof.
8. Indemnification.
(a) FPL agrees to indemnify and hold harmless each Underwriter,
each officer and director of each Underwriter and each person who
controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or any
other statute or common law and to reimburse each such Underwriter,
officer, director and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable
counsel fees) when and as incurred by them in connection with
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investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (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 8
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished in writing, to FPL by or on
behalf of any Underwriter, through the Representatives, expressly for
use in connection with the preparation of any preliminary prospectus,
the Registration Statement 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; and
provided, further, that the indemnity agreement contained in this
subsection (a) of Section 8 in respect of any preliminary prospectus
(and for purposes of clause (ii) below, the Prospectus) shall not
inure to the benefit of any Underwriter (or of any officer or director
or person controlling such Underwriter) on account of any such losses,
claims, damages, liabilities, expenses or actions arising from the
sale of the Shares to any person 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 Shares 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 Shares to such person,
but exclusive of any Incorporated Documents, unless the alleged
omission or alleged untrue statement with respect to such preliminary
prospectus or the Prospectus was not corrected in the Prospectus or in
such amendment or supplement at the time of such delivery of such
Shares. The indemnity agreement of FPL contained in this subsection
(a) of Section 8 and the representations and warranties of FPL
contained in Section 2 hereof, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf
of any Underwriter, officer, director or any such controlling person,
and shall survive the delivery of the Shares. The Underwriters agree
promptly to notify FPL, and each other Underwriter, of the
commencement of any litigation or proceedings against them or any of
them, or any such officer, director or controlling person in
connection with the issuance and sale of the Shares.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless FPL, its officers and directors, and each
person who controls FPL within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
11
they or any of them may become subject under the Securities Act or any
other statute or common law and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) when and as incurred by them in
connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus,
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, by or on
behalf of such Underwriter, through the Representatives, expressly for
use in connection with the preparation of any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or
supplement thereof. The Underwriters hereby furnish to FPL in writing
expressly for use in the [preliminary prospectus, the] Registration
Statement and Prospectus [insert information provided by the
Underwriters]. FPL acknowledges that the statements set forth in the
preceding sentence[s] constitute the only information furnished in
writing by or on behalf of the several Underwriters expressly for
inclusion in any preliminary prospectus, the Registration Statement or
the Prospectus. The indemnity agreement of the respective Underwriters
contained in this subsection (b) of Section 9 shall remain operative
and in full force and effect, regardless of any investigation made by
or on behalf of FPL or any of its officers or directors or any such
other Underwriter or any such controlling person, and shall survive
the delivery of the Shares. FPL agrees promptly to notify the
Representatives of the commencement of any litigation or proceedings
against FPL (or any controlling person thereof) or any of its officers
or directors in connection with the issuance and sale of the Shares.
(c) FPL and each of the several Underwriters each agree that,
upon the receipt of notice of the commencement of any action against
it, its officers and directors, or any person controlling it as
aforesaid, in respect of which indemnity or contribution may be sought
under the provisions of this Section 8, it will promptly give written
notice of the commencement thereof to the party or parties against
whom indemnity or contribution shall be sought thereunder, but the
omission so to notify such indemnifying party or parties of any such
action shall not relieve such indemnifying party or parties from any
liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party or parties
shall be entitled to participate at its own expense in the defense or,
if it so elects, to assume (in conjunction with any other indemnifying
parties) the defense of such action, in which event such defense shall
be conducted by counsel chosen by such indemnifying party or parties
and reasonably satisfactory to the indemnified party or parties who
shall be defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional counsel
retained by them; but if each of the indemnifying parties shall elect
not to assume the defense of such action, such indemnifying party or
parties will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and counsel for the
12
indemnifying party shall have reasonably concluded that there may be a
conflict of interest in the representation by such counsel of both the
indemnifying party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel, satisfactory
to the indemnifying party or parties, to participate in the defense of
such action on behalf of such indemnified party or parties at the
expense of the indemnifying party or parties (it being understood,
however, that the indemnifying party or parties shall not be liable
for the expenses of more than one separate counsel representing the
indemnified parties who are parties to such action). FPL and each of
the several Underwriters each agree that without the prior written
consent of the other parties to such action who are parties to this
agreement, which consent shall not be unreasonably withheld, it will
not settle, compromise or consent to the entry of any judgment in any
claim or proceeding in respect of which such party intends to seek
indemnity or contribution under the provisions of this Section 8,
unless such settlement, compromise or consent (i) includes an
unconditional release of such other parties from all liability arising
out of such claim or proceeding and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or
on behalf of such other parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable
law by an indemnified party, each indemnifying party agrees to
contribute to such indemnified party with respect to any and all
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subsections (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative fault of FPL on the one hand and the Underwriters on
the other in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses,
(ii) the relative benefits received by FPL on the one hand and the
Underwriters on the other hand from the offering of the Shares
pursuant to this agreement, and (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution with respect
thereto from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by FPL or the
Underwriters and each such party's relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. FPL and each of the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were to be determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute in excess of the amount equal to the excess of (i) the
total price at which the Shares underwritten by it were offered to the
public, over (ii) the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of
each Underwriter to contribute pursuant to this subsection (d) are
several and not joint and shall be in the same proportion as such
Underwriter's obligation to underwrite Shares is to the total amount
of Shares set forth in Schedule II hereto.
13
9. Termination. This agreement may be terminated by the Representatives
by delivering written notice thereof to FPL, at any time prior to the Closing
Date, if after the date hereof and at or prior to the Closing Date:
(a) (i) there shall have occurred any general suspension of
trading in securities on the NYSE or there shall have been established
by the NYSE or by the Commission or by any federal or state agency or
by the decision of any court any limitation on prices for such trading
or any general restrictions on the distribution of securities, or
trading in any securities of FPL shall have been suspended or limited
by any exchange located in the United States or on the
over-the-counter market located in the United States or a general
banking moratorium declared by New York or federal authorities or (ii)
there shall have occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities, including,
but not limited to, an escalation of hostilities which existed prior
to the date of this agreement, any other national or international
calamity or crisis or any material adverse change in financial,
political or economic conditions affecting the United States, the
effect of any such event specified in this clause (ii) being such as
to make it, in the reasonable judgment of the Representative,
impracticable or inadvisable to proceed with the offering of the
Shares as contemplated in the Prospectus or for the Underwriters to
enforce contracts for the sale of the Shares.
This agreement may also be terminated at any time prior to the Closing Date if
in the judgment of the Representatives the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus prepared and
furnished by FPL after the date hereof reflects a material adverse change in the
business, properties or financial condition of FPL and its subsidiaries taken as
a whole which renders it either inadvisable to proceed with such offering, if
any, or inadvisable to proceed with the delivery of the Shares to be purchased
hereunder. Any termination of this agreement pursuant to this Section 9 shall be
without liability of any party to any other party except as otherwise provided
in subsections (c) and (e) of Section 5 hereof.
10. Miscellaneous. The validity and interpretation of this agreement
shall be governed by the laws of the State of New York without regard to
conflicts of law principles thereunder. This agreement shall inure to the
benefit of, and be binding upon, FPL, the several Underwriters and, with respect
to the provisions of Section 8 hereof, each officer, director or controlling
person referred to in said Section 8, and their respective successors. Nothing
in this agreement is intended or shall be construed to give to any other person
or entity any legal or equitable right, remedy or claim under or in respect of
this agreement or any provision herein contained. The term "successors" as used
in this agreement shall not include any purchaser, as such purchaser, of any
Shares from any of the several Underwriters.
11. Notices. All communications hereunder shall be in writing or by
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL,
shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach,
Florida 33408, Attention: Treasurer.
14
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
Florida Power & Light Company
By:
-------------------------------
Name:
Title:
Accepted and delivered as of the
date first above written:
By:
-----------------------------
Name:
Title:
Acting on [its] [their] own behalf and on behalf of the other several
Underwriters referred to in the foregoing agreement.
15
SCHEDULE I
Underwriting Agreement dated __________________
Registration Statement Nos. 333-_______, 333-______-01 and 333-_______-02
Representatives and Addresses:
Shares:
Designation:
Number of Shares
Dividend Rate:
Underwriting [Discount] [Compensation]:
Public Offering Price:
Purchase Price:
Closing Date, Time and Location:_________, 200_ at the offices of
Thelen Reid & Priest LLP, 875 Third
Avenue, New York, New York at ____
SCHEDULE II
Number of
Underwriter Shares
-----------
[Name of Underwriter]
_______________
Total.....................................
===============
SCHEDULE III
[LETTERHEAD OF STEEL HECTOR & DAVIS LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as counsel for Florida Power & Light Company ("FPL") (a)
in connection with the authorization and issuance by FPL of __________ shares of
its serial Preferred Stock, [$100] [without] par value ("Preferred Stock" or the
"Shares") and (b) in connection with the sale of the Shares to you in accordance
with the Underwriting Agreement, dated __________, 200_, between you and FPL
(the "Agreement"). Capitalized terms used in this opinion but not defined shall
have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-_______, 333-______-01 and 333-_______-02 which registration
statement was filed by FPL, Florida Power & Light Company Trust I and Florida
Power & Light Company Trust II with the Commission under the Securities Act of
1933, as amended ("Securities Act") (references herein to the term "Registration
Statement" as of any given date shall mean Registration Statement Nos.
333-_______, 333-______-01 and 333-_______-02, 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 _________, 200_ forming a
part of the Registration Statement, as supplemented by a prospectus supplement
dated __________, 200_ relating to the Shares, 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 Shares filed pursuant to Rule 424, and as further amended and
supplemented to such date, including the Incorporated Documents); (3) the
corporate proceedings of FPL with respect to the Registration Statement and with
respect to the authorization, issuance and sale of the Shares; (4) FPL's
Restated Articles of Incorporation, as amended to the date hereof (the
"Charter"), the Articles of Amendment to the Charter with respect to the Shares,
as filed with the Department of State of the State of Florida, and Bylaws, as
amended to the date hereof (the "Bylaws"); and (5) 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. We have also
participated in the preparation of FPL's Application to the Florida Public
Service Commission ("FPSC") for the authorization of, among other things, the
issuance and sale of securities in 200_, including the Shares.
Upon the basis of the foregoing, we advise you that:
I.
FPL is a validly organized and existing corporation and is in good
standing under the laws of the State of Florida, and has valid franchises,
licenses and permits adequate for the conduct of its business.
II.
FPL is a corporation duly authorized by its Charter to conduct the
business which it is now conducting as set forth in the Prospectus; FPL is
subject, as to retail rates and services, issuance of securities, accounting and
certain other matters, to the jurisdiction of the FPSC; and FPL is subject, as
to wholesale rates, accounting and certain other matters, to the jurisdiction of
the Federal Energy Regulatory Commission.
III.
The Shares have been duly authorized and are validly issued, fully paid
and non-assessable. The holder of FPL's common stock, $__ par value, has no
preemptive rights pursuant to Florida law, the FPL Charter or the FPL Bylaws,
or, to our knowledge, any agreement or instrument the terms of which are known
to us to which FPL is now a party, to subscribe for any of the Shares.
IV.
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 times 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 became, 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.
V.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement, will not result in a
breach of any of the terms or provisions of, or constitute a default under, as
the case may be, the FPL Charter or the FPL Bylaws, or any indenture, mortgage,
III-2
deed of trust or other agreement or instrument the terms of which are known to
us to which FPL or any of its subsidiaries 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, together with its subsidiaries taken
as a whole.
VI.
The Shares are being issued and sold pursuant to the authority
contained in an order of the FPSC, which authority is adequate to permit the
issuance and sale of the Shares. To the best of our knowledge, said
authorization is still in full force and effect, and no further 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 which
already have been obtained) is legally required for the authorization of the
issuance and sale of the Shares.
VII.
The statements made in the Prospectus under the headings "Description
of __________"], 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.
VIII.
[The Shares have been listed, upon official notice of issuance, on The
New York Stock Exchange, Inc.]
IX.
Except as stated or referred to in the Prospectus, to our knowledge
after due inquiry there is no material pending legal proceeding to which FPL or
any of its subsidiaries is a party or of which property of FPL 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 and its subsidiaries taken as a whole and, to the
best of our knowledge, no such proceeding is known to be contemplated by
governmental authorities.
X.
The Agreement has been duly and validly authorized, executed and
delivered by FPL.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Shares will conform to specimens examined by us,
that the certificates representing the Shares will be duly countersigned by the
transfer agent and duly registered by the registrar thereof 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. [Insert additional assumptions, if
applicable]
III-3
Other than with respect to the opinion expressed in Paragraph VII
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its other legal counsel, its independent public accountants and your
representatives. Additionally, as counsel to FPL, we have responsibility for
certain of its legal matters. On the basis of such consideration, review and
discussion, but without independent check or verification except as stated,
nothing has come to our attention that would lead us to believe (except as to
the financial statements and other financial or statistical data contained or
incorporated by reference therein, as to which we express no belief, and except
for those parts of the Registration Statement that constitute the Statements of
Eligibility on Form T-1, as to which we express no belief), that the
Registration Statement, at the Effective Date, contained an 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, an untrue statement of a material fact
or the Prospectus at the 424 Date omitted, or at the date hereof omits, to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We are members of the Florida Bar and do not hold ourselves out as
experts on the laws of New York, and accordingly, this opinion is limited to the
laws of Florida and the federal laws of the United States, insofar as they bear
on matters covered hereby. As to all matters of New York law, we have relied,
with your consent, upon an opinion of even date herewith addressed to you by
Thelen Reid & Priest LLP, New York, New York. As to all matters of Florida law,
Thelen Reid & Priest LLP and Hunton & Williams LLP are hereby authorized to rely
upon this opinion as though it were rendered to each of them.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
STEEL HECTOR & DAVIS LLP
III-4
SCHEDULE IV
[LETTERHEAD OF THELEN REID & PRIEST LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as special counsel for Florida Power & Light Company
("FPL") (a) in connection with the authorization and issuance by FPL of
__________ shares of its serial Preferred Stock, [$100] [without] par value
("Preferred Stock" or the "Shares") and (b) in connection with the sale of the
Shares to you in accordance with the Underwriting Agreement, dated __________,
200_, between you and FPL (the "Agreement"). Capitalized terms used in this
opinion but not defined shall have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-_______, 333-______-01 and 333-_______-02 which registration
statement was filed by FPL, Florida Power & Light Company Trust I and Florida
Power & Light Company Trust II with the Commission under the Securities Act of
1933, as amended ("Securities Act") (references herein to the term "Registration
Statement" as of any given date shall mean Registration Statement Nos.
333-_______, 333-______-01 and 333-_______-02, 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 _________, 200_ forming a
part of the Registration Statement, as supplemented by a prospectus supplement
dated __________, 200_ relating to the Shares, 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 Shares filed pursuant to Rule 424, and as further amended and
supplemented to such date, including the Incorporated Documents); (3) the
corporate proceedings of FPL with respect to the Registration Statement and with
respect to the authorization, issuance and sale of the Shares; (4) FPL's
Restated Articles of Incorporation, as amended to the date hereof (the
"Charter"), the Articles of Amendment to the Charter with respect to the Shares,
as filed with the Department of State of the State of Florida, and Bylaws, as
amended to the date hereof (the "Bylaws"); and (5) 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. We have also
participated in the preparation of FPL's Application to the Florida Public
Service Commission ("FPSC") for the authorization of, among other things, the
issuance and sale of securities in 200_, including the Shares.
Upon the basis of the foregoing, we advise you that:
I.
The Shares have been duly authorized and are validly issued, fully paid
and non-assessable. The holder of FPL's common stock, $__ par value, has no
preemptive rights pursuant to Florida law, the FPL Charter or the FPL Bylaws,
or, to our knowledge, any agreement or instrument the terms of which are known
to us to which FPL is now a party, to subscribe for any of the Shares.
II.
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 times 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 became, 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.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement, will not result in a
breach of any of the terms or provisions of, or constitute a default under, as
the case may be, the FPL Charter or the FPL Bylaws, or any indenture, mortgage,
deed of trust or other agreement or instrument the terms of which are known to
us to which FPL or any of its subsidiaries 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, together with its subsidiaries taken
as a whole.
IV.
The Shares are being issued and sold pursuant to the authority
contained in an order of the FPSC, which authority is adequate to permit the
issuance and sale of the Shares. To the best of our knowledge, said
authorization is still in full force and effect, and no further 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 which
already have been obtained) is legally required for the authorization of the
issuance and sale of the Shares.
IV-2
V.
The statements made in the Prospectus under the headings "Description
of __________"], 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.
VI.
[The Shares have been listed, upon official notice of issuance, on The
New York Stock Exchange, Inc.]
VII.
The Agreement has been duly and validly authorized, executed and
delivered by FPL.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Shares will conform to specimens examined by us,
will be duly countersigned by the transfer agent and duly registered by the
registrar thereof 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. [Insert
additional assumptions, if applicable]
Other than with respect to the opinion expressed in Paragraph V hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in the Registration
Statement or the Prospectus. We have generally reviewed and discussed such
information with certain officers and employees of FPL, certain of its other
legal counsel, its independent public accountants and your representatives. On
the basis of such consideration, review and discussion, but without independent
check or verification except as stated, nothing has come to our attention that
would lead us to believe (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no belief, and except for those parts of the Registration
Statement that constitute the Statements of Eligibility on Form T-1, as to which
we express no belief), that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary 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, an 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 governed by Florida
law, including without limitation, the incorporation of FPL Capital or FPL,
titles to property or franchises. As to all matters of Florida law, we have
relied, with your consent, upon an opinion of even date herewith addressed to
you by Steel Hector & Davis LLP, Miami, Florida. As to all matters of New York
law, Steel Hector & Davis LLP is hereby authorized to rely upon this opinion as
though it were rendered to Steel Hector & Davis LLP.
IV-3
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
THELEN REID & PRIEST LLP
IV-4
SCHEDULE V
[LETTERHEAD OF HUNTON & WILLIAMS LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as counsel for you in connection with your several
purchases from Florida Power & Light Company ("FPL") of __________ shares of its
preferred stock, $[__] par value ("Preferred Stock or the "Shares") pursuant to
the Underwriting Agreement, dated as of ______________ (the "Agreement"),
between you and FPL. Capitalized terms used in this opinion but not defined
shall have the meanings set forth in the Agreement.
In connection with the foregoing, we have examined such documents and
satisfied ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion.
Based on the foregoing, we are of the opinion that:
1. The Shares have been duly authorized and are validly issued, fully
paid and non-assessable.
2. Registration Statement Nos. 333-_______, 333-______-01 and
333-______-02 (the "Registration Statement"), at the Effective Date, and the
Prospectus, at the 424 Date (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion, and except for those parts of the Registration
Statement that constitute the Statements of Eligibility on Form T-1, as to which
we express no opinion), complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable instructions,
rules and regulations of the Commission thereunder. The Incorporated Documents
(except as to the financial statements and other financial or statistical data
contained or incorporated by reference therein, as to which we express no
opinion), at the time they were filed with the Commission, complied as to form
in all material respects with the applicable requirements of the Exchange Act
and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement was declared, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
3. The statements made in the Prospectus under the headings
["Description of _______________"], 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.
4. The Agreement has been duly and validly authorized, executed and
delivered by FPL.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Shares will conform to specimens examined by us,
will be duly countersigned by the transfer agent and duly registered by the
registrar thereof 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. [Insert
additional assumptions, if applicable] We express no opinion or belief as to the
incorporation of FPL, titles to property or franchises.
In passing on the form of the Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by FPL and take no responsibility therefor,
except insofar as such statements relate to us and as set forth in paragraph 3
above. Other than with respect to the opinion expressed in Paragraph 3 hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to the matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its legal counsel, its independent public accountants and your
representatives. On the basis of such review and discussion, but without
independent check or verification except as stated, nothing has come to our
attention that would lead us to believe (except as to the financial statements
and other financial or statistical data contained or incorporated by reference
therein, as to which we express no belief, and except for those parts of the
Registration Statement that constitute the Statements of Eligibility on Form
T-1, as to which we express no belief), that the Registration Statement, at the
Effective Date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements contained therein not misleading or (except as aforesaid)
that the Prospectus at the 424 Date included, or at the date hereof includes,
any untrue statement of a material fact or the Prospectus at the 424 Date
omitted, or at the date hereof omits, to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
This opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and, to the extent set forth
herein, the law of the State of Florida. We have reviewed the opinion of even
date herewith addressed to you of Steel Hector & Davis LLP, counsel for FPL,
required by Section 6(c)(i) of the Agreement, and we believe such opinion to be
satisfactory. We have, with your consent, relied upon such opinion as to the
matters covered in such opinion relating to the laws of the State of Florida. We
have also reviewed the opinion of even date herewith addressed to you by Thelen
Reid & Priest LLP, counsel to FPL, required by Section 6(c)(i) of the Agreement,
and we believe such opinion to be satisfactory.
V-2
This opinion is given to you solely for your use as the Underwriters in
connection with the Agreement and the transactions contemplated thereunder and
may not be relied upon by any other person or for any other purpose without our
express written consent. This opinion is expressed as of the date hereof, and we
do not assume any obligation to update or supplement it to reflect any fact or
circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
HUNTON & WILLIAMS LLP
V-3