AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 2001
REGISTRATION STATEMENT NOS. 333-_____ AND 333-_____-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FPL GROUP, INC. FLORIDA 59-2449419
FPL GROUP CAPITAL INC FLORIDA 59-2576416
(Exact name of each registrant as (State or other jurisdiction of (I.R.S. Employer
specified in its charter) incorporation or organization) Identification No.)
----------------
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
(Address, including zip code, and telephone number, including area code,
of registrants' principal executive offices)
----------------
Dennis P. Coyle Jeffrey I. Mullens, P.A. Robert J. Reger, Jr., Esq.
General Counsel and Secretary Steel Hector & Davis LLP Thelen Reid & Priest LLP
FPL Group, Inc. 1900 Phillips Point West 40 West 57th Street
700 Universe Boulevard 777 South Flagler Drive New York, New York 10019
Juno Beach, Florida 33408 West Palm Beach, Florida 33401 (212) 603-2000
(561) 694-4000 (561) 650-7257
(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
----------------
It is respectfully requested that the Commission also send copies of
all notices, orders and communications to:
Richard L. Harden, Esq.
Pillsbury Winthrop LLP
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this registration statement as
determined by market conditions and other factors.
----------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
Proposed Maximum Aggregate Amount of
Title of Each Class of Securities to be Registered Offering Price (1) Registration Fee
-----------------------------------------------------------------------------------------------------
FPL Group Capital Inc Debt Securities (2) N/A
FPL Group, Inc. Guarantee (3) (4)
FPL Group, Inc. Common Stock, $0.01 Par Value (2) N/A
FPL Group, Inc., Preferred Share Purchase Rights (5) (6)
FPL Group, Inc. Stock Purchase Contracts (7) (2) N/A
FPL Group, Inc. Stock Purchase Units (7) (2) N/A
-----------------------------------------------------------------------------------------------------
Total $2,000,000,000 $478,000
=====================================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act").
(2) In no event will the aggregate offering price of all common stock
(including the preferred share purchase rights), stock purchase contracts,
stock purchase units, debt securities, and guarantee issued from time to
time pursuant to this registration statement exceed $2,000,000,000. If any
such securities are issued at an original issue discount, then the
aggregate initial offering price as so discounted shall not exceed
$2,000,000,000, notwithstanding that the stated principal amount of such
securities may exceed such amount.
(3) The value attributable to the FPL Group, Inc. Guarantee, if any, is
reflected in the market price of the FPL Group Capital Inc Debt Securities.
(4) Pursuant to Rule 457(n) under the Securities Act, no separate fee for the
FPL Group, Inc. Guarantee attributable to the FPL Group Capital Inc Debt
Securities registered pursuant hereto shall be payable.
(5) The preferred share purchase rights are attached to and will trade with the
common stock. The value attributable to the preferred share purchase
rights, if any, is reflected in the market price of the common stock.
(6) Since no separate consideration is paid for the preferred share purchase
rights, the registration fee for such securities is included in the fee for
the common stock.
(7) Subject to footnote (2), there is being registered hereunder an
indeterminate number of shares of common stock issuable by FPL Group, Inc.
upon settlement of the stock purchase contracts or stock purchase units.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY
ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
The information in this prospectus is not complete and may be changed. FPL Group
and FPL Group Capital may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 19, 2001
PROSPECTUS
$2,000,000,000
AGGREGATE AMOUNT
--------------------------
FPL GROUP CAPITAL INC
DEBT SECURITIES
THE DEBT SECURITIES WILL BE ABSOLUTELY, IRREVOCABLY AND
UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
--------------------------
FPL GROUP, INC.
COMMON STOCK WITH ATTACHED PREFERRED SHARE PURCHASE RIGHTS
STOCK PURCHASE CONTRACTS
AND
STOCK PURCHASE UNITS
---------------------------------------------------
FPL Group, Inc. and FPL Group Capital Inc may offer from time to time
up to an aggregate of $2,000,000,000 of their securities. FPL Group and FPL
Group Capital will provide specific terms of the securities, including the
offering prices, in supplements to this prospectus. The supplements may also
add, update or change information contained in this prospectus. You should read
this prospectus and any supplements carefully before you invest.
FPL Group's common stock is listed on the New York Stock Exchange and
trades under the symbol "FPL."
FPL Group and FPL Group Capital may offer these securities directly or
through underwriters, agents or dealers. The supplements to this prospectus will
describe the terms of any particular plan of distribution, including any
underwriting arrangements. The "Plan of Distribution" section on page 21 of this
prospectus also provides more information on this topic.
Both FPL Group's and FPL Group Capital's principal executive offices
are located at 700 Universe Boulevard, Juno Beach, Florida 33408, telephone
number (561) 694-4000, and their mailing address is P.O. Box 14000, Juno Beach,
Florida 33408-0420.
---------------------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------, ----
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that FPL Group and
FPL Group Capital have filed with the Securities and Exchange Commission ("SEC")
using a "shelf" registration process. Under this shelf registration process, FPL
Group and FPL Group Capital may sell the securities or combinations of the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $2,000,000,000. This prospectus provides you with a general
description of the securities that FPL Group and/or FPL Group Capital may offer.
Each time FPL Group and/or FPL Group Capital sells securities, FPL Group and/or
FPL Group Capital will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described under the heading "Where You Can Find More
Information."
For more detailed information about the securities, you can read the
exhibits to the registration statement. Those exhibits have been either filed
with the registration statement or incorporated by reference to earlier SEC
filings listed in the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
FPL Group files annual, quarterly and other reports and other
information with the SEC. You can read and copy any information filed by FPL
Group with the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You can obtain additional information about the Public
Reference Room by calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov)
that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including FPL Group.
FPL Group also maintains an Internet site (http://www.fplgroup.com).
FPL Group Capital does not file reports or other information with the
SEC. FPL Group includes summarized financial information relating to FPL Group
Capital in some of its reports filed with the SEC. FPL Group does not intend to
include any separate financial information with respect to FPL Group Capital in
its consolidated financial statements because FPL Group and FPL Group Capital
have determined that this information is not material to the holders of FPL
Group Capital's debt securities.
INCORPORATION BY REFERENCE
The SEC allows FPL Group Capital and FPL Group to "incorporate by
reference" the information that FPL Group files with the SEC, which means that
FPL Group Capital and FPL Group may, in this prospectus, disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus. Information
that FPL Group files in the future with the SEC will automatically update and
supersede this information. FPL Group Capital and FPL Group are incorporating by
reference the documents listed below and any future filings FPL Group makes with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, until FPL Group and/or FPL Group Capital sell all of these securities:
(1) FPL Group's Annual Report on Form 10-K for the year ended December
31, 2000, as amended by Form 10-K/A filed with the SEC on April 9,
2001;
(2) FPL Group's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2001, June 30, 2001 and September 30, 2001; and
(3) FPL Group's Current Reports on Form 8-K filed with the SEC on
March 19, 2001, April 2, 2001, May 18, 2001 and June 13, 2001.
You may request a copy of these documents, at no cost to you, by
writing or calling Robert J. Reger, Jr., Esq., Thelen Reid & Priest LLP, 40 West
57th Street, New York, New York, 10019, (212) 603-2000.
2
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, FPL Group and FPL Group Capital are hereby filing
cautionary statements identifying important factors that could cause FPL Group's
and FPL Group Capital's actual results to differ materially from those projected
in forward-looking statements (as that term is defined in the Private Securities
Litigation Reform Act of 1995) made by or on behalf of FPL Group or FPL Group
Capital that are made in this prospectus or any supplement to this prospectus,
in presentations, in response to questions or otherwise. Any statements that
express, or involve discussions as to, expectations, beliefs, plans, objectives,
assumptions or future events or performance (often, but not always, through the
use of words or phrases such as "will likely result", "are expected to", "will
continue", "is anticipated", "estimated", "projection" or "outlook") are not
statements of historical facts and may be forward-looking. Forward-looking
statements involve estimates, assumptions and uncertainties. Accordingly, any of
those statements are qualified in their entirety by reference to, and are
accompanied by, the following important factors that could cause FPL Group's or
FPL Group Capital's actual results to differ materially from those contained in
forward-looking statements made by or on behalf of FPL Group or FPL Group
Capital.
Any forward-looking statement speaks only as of the date on which that
statement is made, and neither FPL Group nor FPL Group Capital undertakes any
obligation to update any forward-looking statement to reflect events or
circumstances after the date on which that statement is made or to reflect the
occurrence of unanticipated events. New factors emerge from time to time, and it
is not possible for management to predict all of those factors, nor can it
assess the impact of each of those factors on the business or the extent to
which any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statement.
Some important factors that could cause actual results or outcomes to
differ materially from those discussed in the forward-looking statements include
changes in laws or regulations, including the Public Utility Regulatory Policies
Act of 1978 and the Public Utility Holding Company Act of 1935, and changing
governmental policies and regulatory actions, including those of the Federal
Energy Regulatory Commission, the Florida Public Service Commission and the U.S.
Nuclear Regulatory Commission, with respect to:
(1) allowed rates of return, including but not limited to, return on
common equity and equity ratio limits,
(2) industry and rate structure,
(3) operation of nuclear power facilities,
(4) acquisition, disposal, depreciation and amortization of assets and
facilities,
(5) operation and construction of plant facilities,
(6) recovery of fuel and purchased power costs,
(7) decommissioning costs, and
(8) present or prospective wholesale and retail competition, including,
but not limited to, retail wheeling and transmission costs.
The business and profitability of FPL Group and FPL Group Capital are
also influenced by economic and geographic factors including:
(1) political and economic risks,
(2) changes in and compliance with environmental and safety laws and
policies,
(3) weather conditions, including natural disasters such as hurricanes,
3
(4) population growth rates and demographic patterns,
(5) competition for retail and wholesale customers,
(6) availability, pricing and transportation of fuel and other energy
commodities,
(7) market demand for energy,
(8) changes in tax rates or policies or in rates of inflation or in
accounting standards,
(9) unanticipated delays or changes in costs for capital projects,
(10) unanticipated changes in operating expenses and capital
expenditures,
(11) capital market conditions,
(12) competition for new energy development opportunities, and
(13) legal and administrative proceedings, whether civil, such as
environmental, or criminal, and settlements.
All of these factors are difficult to predict, contain uncertainties
that may materially affect actual results, and are beyond the control of FPL
Group and FPL Group Capital.
FPL GROUP CAPITAL
FPL Group Capital was incorporated in 1985 as a Florida corporation and
is a wholly-owned subsidiary of FPL Group. FPL Group Capital holds the capital
stock of, and provides funding for, FPL Group's operating subsidiaries other
than Florida Power & Light Company. These operating subsidiaries' business
activities primarily consist of independent power projects.
FPL GROUP
FPL Group is a holding company incorporated in 1984 as a Florida
corporation. FPL Group's principal subsidiary, Florida Power & Light Company, is
engaged in the generation, transmission, distribution and sale of electric
energy. Other operations are conducted through FPL Group Capital.
USE OF PROCEEDS
Unless otherwise stated in a prospectus supplement, FPL Group Capital
and FPL Group will each add the net proceeds from the sale of these securities
to its respective general funds. FPL Group uses its general funds for corporate
purposes, including to provide funds for its subsidiaries. FPL Group Capital
uses its general funds for corporate purposes, including to repay short-term
borrowings and to redeem or repurchase outstanding long-term debt obligations.
FPL Group Capital and FPL Group will each temporarily invest any proceeds that
it does not need to use immediately in short-term instruments.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table shows FPL Group's consolidated ratio of earnings to
fixed charges for each of its last five fiscal years:
Years Ended December 31,
2000 1999 1998 1997 1996
---- ---- ---- ---- ----
4.30 5.26 3.88 4.09 4.20
4
FPL Group's consolidated ratio of earnings to fixed charges for the
nine months ended September 30, 2001 was 4.10.
3
DESCRIPTION OF OFFERED DEBT SECURITIES
GENERAL. FPL Group Capital will issue its debt securities, in one or
more series, under an Indenture, dated as of June 1, 1999, between FPL Group
Capital and The Bank of New York, as Trustee. This Indenture, as it may be
amended and supplemented from time to time, is referred to in this prospectus as
the "Indenture." The Bank of New York, as Trustee under the Indenture, is
referred to in this prospectus as the "Indenture Trustee." These debt securities
are referred to in this prospectus as the "Offered Debt Securities."
The Indenture provides for the issuance of debentures, notes or other
debt by FPL Group Capital in an unlimited amount from time to time. The Offered
Debt Securities and all other debentures, notes or other debt of FPL Group
Capital issued under the Indenture are collectively referred to in this
prospectus as the "Debt Securities."
This section briefly summarizes some of the terms of the Offered Debt
Securities and some of the provisions of the Indenture. This summary does not
contain a complete description of the Offered Debt Securities. You should read
this summary together with the Indenture and the officer's certificates or other
documents establishing the Offered Debt Securities for a complete understanding
of the provisions that may be important to you and for the definitions of some
terms used in this summary. The Indenture, the form of officer's certificate
that may be used to establish a series of Offered Debt Securities and a form of
Offered Debt Securities are on file with the SEC and are incorporated by
reference in this prospectus. In addition, the Indenture is subject to the
provisions of the Trust Indenture Act of 1939. You should read the Trust
Indenture Act of 1939 for a complete understanding of provisions that may be
important to you.
Each series of Offered Debt Securities will have different terms. FPL
Group Capital will include some or all of the following information about a
specific series of Offered Debt Securities in the prospectus supplement(s)
relating to those Offered Debt Securities:
(1) the title of those Offered Debt Securities,
(2) any limit upon the aggregate principal amount of those Offered Debt
Securities,
(3) the date(s) on which FPL Group Capital will pay the principal of
those Offered Debt Securities,
(4) the rate(s) of interest on those Offered Debt Securities, or how
the rate(s) of interest will be determined, the date(s) from which
interest will accrue, the dates on which FPL Group Capital will pay
interest and the record date for any interest payable on any
interest payment date,
(5) the person to whom FPL Group Capital will pay interest on those
Offered Debt Securities on any interest payment date, if other than
the person in whose name those Offered Debt Securities are
registered at the close of business on the record date for that
interest payment,
(6) the place(s) at which or methods by which FPL Group Capital will
make payments on those Offered Debt Securities and the place(s) at
which or methods by which the registered owners of those Offered
Debt Securities may transfer or exchange those Offered Debt
Securities and serve notices and demands to or upon FPL Group
Capital,
(7) the security registrar and any paying agent or agents for those
Offered Debt Securities,
(8) any date(s) on which, the price(s) at which and the terms and
conditions upon which FPL Group Capital may, at its option, redeem
those Offered Debt Securities, in whole or in part, and any
restrictions on those redemptions,
5
(9) any sinking fund or other provisions or options held by the
registered owners of those Offered Debt Securities that would
obligate FPL Group Capital to repurchase or redeem those Offered
Debt Securities,
(10) the denominations in which FPL Group Capital may issue those
Offered Debt Securities, if other than denominations of $1,000 and
any integral multiple of $1,000,
(11) the currency or currencies in which FPL Group Capital may pay the
principal of or premium, if any, or interest on those Offered Debt
Securities (if other than in U.S. dollars),
(12) if FPL Group Capital or a registered owner may elect to pay, or
receive, principal of or premium, if any, or interest on those
Offered Debt Securities in a currency other than that in which
those Offered Debt Securities are stated to be payable, the terms
and conditions upon which that election may be made,
(13) if FPL Group Capital will, or may, pay the principal of or
premium, if any, or interest on those Offered Debt Securities in
securities or other property, the type and amount of those
securities or other property and the terms and conditions upon
which FPL Group Capital or a registered owner may elect to pay or
receive those payments,
(14) if the amount payable in respect of principal of or premium, if
any, or interest on those Offered Debt Securities may be
determined by reference to an index or other fact or event
ascertainable outside of the Indenture, the manner in which those
amounts will be determined,
(15) the portion of the principal amount of those Offered Debt
Securities that FPL Group Capital will pay upon declaration of
acceleration of the maturity of those Offered Debt Securities, if
other than the entire principal amount of those Offered Debt
Securities,
(16) any events of default with respect to those Offered Debt
Securities and any covenants of FPL Group Capital for the benefit
of the registered owners of those Offered Debt Securities, other
than those specified in the Indenture,
(17) the terms, if any, pursuant to which those Offered Debt Securities
may be converted into or exchanged for shares of capital stock or
other securities of FPL Group Capital or any other entity,
(18) a definition of "Eligible Obligations" under the Indenture with
respect to those Offered Debt Securities denominated in a currency
other than U.S. dollars, and any other provisions for the
reinstatement of FPL Group Capital's indebtedness in respect of
those Offered Debt Securities after their satisfaction and
discharge,
(19) if FPL Group Capital will issue those Offered Debt Securities in
global form, necessary information relating to the issuance of
those Offered Debt Securities in global form,
(20) if FPL Group Capital will issue those Offered Debt Securities as
bearer securities, necessary information relating to the issuance
of those Offered Debt Securities as bearer securities,
(21) any limits on the rights of the registered owners of those Offered
Debt Securities to transfer or exchange those Offered Debt
Securities or to register their transfer, and any related service
charges,
(22) any exceptions to the provisions governing payments due on legal
holidays or any variations in the definition of business day with
respect to those Offered Debt Securities,
(23) other than the Guarantee described under "Description of the
Guarantee" below, any collateral security, assurance, or guarantee
for those Offered Debt Securities, and
6
(24) any other terms of those Offered Debt Securities that are not
inconsistent with the provisions of the Indenture (Indenture,
Section 301).
FPL Group Capital may sell Offered Debt Securities at a discount below
their principal amount. Some of the important United States Federal income tax
considerations applicable to Offered Debt Securities sold at a discount below
their principal amount may be discussed in the related prospectus supplement. In
addition, some of the important United States Federal income tax or other
considerations applicable to any Offered Debt Securities that are denominated in
a currency other than U.S. dollars may be discussed in the related prospectus
supplement.
Except as otherwise stated in the related prospectus supplement, the
covenants in the Indenture would not give registered owners of Offered Debt
Securities protection in the event of a highly-leveraged transaction involving
FPL Group Capital.
SECURITY AND RANKING. The Offered Debt Securities will be unsecured
obligations of FPL Group Capital. The Indenture does not limit FPL Group
Capital's ability to provide security with respect to other Debt Securities. All
Debt Securities issued under the Indenture will rank equally and ratably with
all other Debt Securities issued under the Indenture, except to the extent that
FPL Group Capital elects to provide security with respect to any Debt Security
without providing that security to all outstanding Debt Securities as allowed
under the Indenture. The Indenture does not limit FPL Group Capital's ability to
issue other unsecured debt.
FPL Group Capital is a holding company that derives substantially all
of its income from its operating subsidiaries. The Debt Securities therefore
will be effectively subordinated to debt and preferred stock issued by those
subsidiaries. The Indenture does not limit the amount of debt which may be
incurred and preferred stock issuable by FPL Group Capital's subsidiaries.
PAYMENT AND PAYING AGENTS. Except as stated in the related prospectus
supplement, on each interest payment date FPL Group Capital will pay interest on
each Offered Debt Security to the person in whose name that Offered Debt
Security is registered as of the close of business on the record date relating
to that interest payment date. However, on the date that the Offered Debt
Securities mature, FPL Group Capital will pay the interest to the person to whom
it pays the principal. Also, if FPL Group Capital has defaulted in the payment
of interest on any Offered Debt Security, it may pay that defaulted interest to
the registered owner of that Offered Debt Security:
(1) as of the close of business on a date that the Indenture Trustee
selects, which may not be more than 15 days or less than 10 days
before the date that FPL Group Capital proposes to pay the
defaulted interest, or
(2) in any other lawful manner that does not violate the requirements
of any securities exchange on which that Offered Debt Security is
listed and that the Indenture Trustee believes is acceptable
(Indenture, Section 307).
Unless otherwise stated in the related prospectus supplement, the
principal, premium, if any, and interest on the Offered Debt Securities at
maturity will be payable when such Offered Debt Securities are presented at the
main corporate trust office of The Bank of New York, as paying agent, in The
City of New York. FPL Group Capital may change the place of payment on the
Offered Debt Securities, appoint one or more additional paying agents, including
itself, and remove any paying agent (Indenture, Section 602).
TRANSFER AND EXCHANGE. Unless otherwise stated in the related
prospectus supplement, Offered Debt Securities may be transferred or exchanged
at the main corporate trust office of The Bank of New York, as security
registrar, in The City of New York. FPL Group Capital may change the place for
transfer and exchange of the Offered Debt Securities and may designate one or
more additional places for that transfer and exchange.
Except as otherwise stated in the related prospectus supplement, there
will be no service charge for any transfer or exchange of the Offered Debt
Securities. However, FPL Group Capital may require payment of any tax or other
governmental charge in connection with any transfer or exchange of the Offered
Debt Securities.
7
FPL Group Capital will not be required to transfer or exchange any
Offered Debt Security selected for redemption. Also, FPL Group Capital will not
be required to transfer or exchange any Offered Debt Security during a period of
15 days before selection of Offered Debt Securities to be redeemed (Indenture,
Section 305).
DEFEASANCE. FPL Group Capital may, at any time, elect to have all of
its obligations discharged with respect to all or a portion of any Debt
Securities. To do so, FPL Group Capital must irrevocably deposit with the
Indenture Trustee or any paying agent, in trust:
(1) money in an amount that will be sufficient to pay all or that
portion of the principal, premium, if any, and interest due and to
become due on those Debt Securities, on or prior to their
maturity, or
(2) in the case of a deposit made prior to the maturity of that series
of Debt Securities,
(a) direct obligations of, or obligations unconditionally
guaranteed by, the United States and entitled to the benefit
of its full faith and credit that do not contain provisions
permitting their redemption or other prepayment at the option
of their issuer, and
(b) certificates, depositary receipts or other instruments that
evidence a direct ownership interest in those obligations or
in any specific interest or principal payments due in respect
of those obligations that do not contain provisions
permitting their redemption or other prepayment at the option
of their issuer, the principal of and the interest on which,
when due, without any regard to reinvestment of that
principal or interest, will provide money that, together with
any money deposited with or held by the Indenture Trustee,
will be sufficient to pay all or that portion of the
principal, premium, if any, and interest due and to become
due on those Debt Securities, on or prior to their maturity,
or
(3) a combination of (1) and (2) that will be sufficient to pay all or
that portion of the principal, premium, if any, and interest due
and to become due on those Debt Securities, on or prior to their
maturity (Indenture, Section 701).
LIMITATION ON LIENS. So long as any Debt Securities remain outstanding,
FPL Group Capital will not secure any indebtedness with a lien on any shares of
the capital stock of any of its majority-owned subsidiaries, which shares of
capital stock FPL Group Capital now or hereafter directly owns, unless FPL Group
Capital equally secures all Debt Securities. However, this restriction does not
apply to or prevent:
(1) any lien on capital stock created at the time FPL Group Capital
acquires that capital stock, or within 270 days after that time,
to secure all or a portion of the purchase price for that capital
stock,
(2) any lien on capital stock existing at the time FPL Group Capital
acquires that capital stock (whether or not FPL Group Capital
assumes the obligations secured by the lien and whether or not the
lien was created in contemplation of the acquisition),
(3) any extensions, renewals or replacements of the liens described in
(1) and (2) above, or of any indebtedness secured by those liens;
provided, that,
(a) the principal amount of indebtedness secured by those liens
immediately after the extension, renewal or replacement may
not exceed the principal amount of indebtedness secured by
those liens immediately before the extension, renewal or
replacement, and
(b) the extension, renewal or replacement lien is limited to no
more than the same proportion of all shares of capital stock
as were covered by the lien that was extended, renewed or
replaced, or
(4) any lien arising in connection with court proceedings; provided,
that, either
8
(a) the execution or enforcement of that lien is effectively
stayed within 30 days after entry of the corresponding
judgment (or the corresponding judgment has been discharged
within that 30 day period) and the claims secured by that
lien are being contested in good faith by appropriate
proceedings,
(b) the payment of that lien is covered in full by insurance and
the insurance company has not denied or contested coverage,
or
(c) so long as that lien is adequately bonded, any appropriate
legal proceedings that have been duly initiated for the
review of the corresponding judgement, decree or order have
not been fully terminated or the periods within which those
proceedings may be initiated have not expired.
Liens on any shares of the capital stock of any of FPL Group Capital's
majority-owned subsidiaries, which shares of capital stock FPL Group Capital now
or hereafter directly owns, other than liens described in (1) through (4) above,
are referred to in this prospectus as "Restricted Liens." The foregoing
limitation does not apply to the extent that FPL Group Capital creates any
Restricted Liens to secure indebtedness that, together with all other
indebtedness of FPL Group Capital secured by Restricted Liens, does not at the
time exceed 5% of FPL Group Capital's Consolidated Capitalization (Indenture,
Section 608).
For this purpose, "Consolidated Capitalization" means the sum of:
(1) Consolidated Shareholders' Equity;
(2) Consolidated Indebtedness for borrowed money (exclusive of any
amounts which are due and payable within one year); and, without
duplication
(3) any preference or preferred stock of FPL Group Capital or any
Consolidated Subsidiary which is subject to mandatory redemption
or sinking fund provisions.
The term "Consolidated Shareholders' Equity" as used above means the
total assets of FPL Group Capital and its Consolidated Subsidiaries less all
liabilities of FPL Group Capital and its Consolidated Subsidiaries. As used in
this definition, the term "liabilities" means all obligations which would, in
accordance with generally accepted accounting principles, be classified on a
balance sheet as liabilities, including without limitation:
(1) indebtedness secured by property of FPL Group Capital or any of
its Consolidated Subsidiaries whether or not FPL Group Capital or
such Consolidated Subsidiary is liable for the payment thereof
unless, in the case that FPL Group Capital or such Consolidated
Subsidiary is not so liable, such property has not been included
among the assets of FPL Group Capital or such Consolidated
Subsidiary on such balance sheet,
(2) deferred liabilities, and
(3) indebtedness of FPL Group Capital or any of its Consolidated
Subsidiaries that is expressly subordinated in right and priority
of payment to other liabilities of FPL Group Capital or such
Consolidated Subsidiary.
As used in this definition, "liabilities" includes preference or preferred stock
of FPL Group Capital or any Consolidated Subsidiary only to the extent of any
such preference or preferred stock that is subject to mandatory redemption or
sinking fund provisions.
The term "Consolidated Indebtedness" means total indebtedness as shown
on the consolidated balance sheet of FPL Group Capital and its Consolidated
Subsidiaries.
The term "Consolidated Subsidiary," means at any date any direct or
indirect majority-owned subsidiary whose financial statements would be
consolidated with those of FPL Group Capital in FPL Group Capital's
9
consolidated financial statements as of such date in accordance with generally
accepted accounting principles (Indenture, Section 608).
The foregoing limitation does not limit in any manner the ability of:
(1) FPL Group Capital to place liens on any of its assets other than
the capital stock of directly held, majority-owned subsidiaries,
(2) FPL Group Capital or FPL Group to cause the transfer of its assets
or those of its subsidiaries, including the capital stock covered
by the foregoing restrictions,
(3) FPL Group to place liens on any of its assets, or
(4) any of the direct or indirect subsidiaries of FPL Group Capital or
FPL Group (other than FPL Group Capital) to place liens on any of
their assets.
CONSOLIDATION, MERGER, AND SALE OF ASSETS. Under the Indenture, FPL
Group Capital may not consolidate with or merge into any other entity or convey,
transfer or lease its properties and assets substantially as an entirety to any
entity, unless:
(1) the entity formed by that consolidation, or the entity into which
FPL Group Capital is merged, or the entity that acquires or leases
FPL Group Capital's property and assets, is an entity organized
and existing under the laws of the United States, any State or the
District of Columbia and that entity expressly assumes FPL Group
Capital's obligations on all Debt Securities and under the
Indenture,
(2) immediately after giving effect to the transaction, no event of
default under the Indenture and no event that, after notice or
lapse of time or both, would become an event of default under the
Indenture exists, and
(3) FPL Group Capital delivers an officer's certificate and an opinion
of counsel to the Indenture Trustee, as provided in the Indenture
(Indenture, Section 1101).
The Indenture does not restrict FPL Group Capital in a merger in which
FPL Group Capital is the surviving entity.
EVENTS OF DEFAULT. Each of the following is an event of default under
the Indenture with respect to the Debt Securities of any series:
(1) failure to pay interest on the Debt Securities of that series
within 30 days after it is due,
(2) failure to pay principal or premium, if any, on the Debt
Securities of that series when it is due,
(3) failure to comply with any other covenant in the Indenture, other
than a covenant that does not relate to that series of Debt
Securities, that continues for 90 days after FPL Group Capital
receives written notice from the Indenture Trustee or FPL Group
Capital and the Indenture Trustee receive written notice from the
registered owners of at least 33% in principal amount of the Debt
Securities of that series,
(4) certain events of bankruptcy, insolvency or reorganization of FPL
Group Capital, and
(5) any other event of default specified with respect to the Debt
Securities of that series (Indenture, Section 801).
An event of default with respect to the Debt Securities of a particular
series will not necessarily constitute an event of default with respect to Debt
Securities of any other series issued under the Indenture.
10
REMEDIES. If an event of default applicable to the Debt Securities of
one or more series, but not applicable to all outstanding Debt Securities,
exists, then either the Indenture Trustee or the registered owners of at least
33% in aggregate principal amount of the Debt Securities of each of those series
may declare the principal of and interest on all the Debt Securities of that
series to be due and payable immediately. However, under the Indenture, some
Debt Securities may provide for a specified amount less than their entire
principal amount to be due and payable upon that declaration. These Debt
Securities are defined as "Discount Securities" in the Indenture.
If the event of default is applicable to all outstanding Debt
Securities, then only the Indenture Trustee or the registered owners of at least
33% in aggregate principal amount of all outstanding Debt Securities of all
series, voting as one class, and not the registered owners of any one series,
may make a declaration of acceleration. However, the event of default giving
rise to the declaration relating to any series of Debt Securities will be
automatically waived, and that declaration and its consequences will be
automatically rescinded and annulled, if, at any time after that declaration and
before a judgment or decree for payment of the money due has been obtained:
(1) FPL Group Capital deposits with the Indenture Trustee a sum
sufficient to pay:
(a) all overdue interest on all Debt Securities of that series,
(b) the principal of and any premium on any Debt Securities of
that series that have become due for reasons other than that
declaration, and interest that is then due,
(c) interest on overdue interest for that series, and
(d) all amounts due to the Indenture Trustee under the
Indenture, and
(2) any other event of default with respect to the Debt Securities of
that series has been cured or waived as provided in the Indenture
(Indenture, Section 802).
Other than its obligations and duties in case of an event of default
under the Indenture, the Indenture Trustee is not obligated to exercise any of
its rights or powers under the Indenture at the request or direction of any of
the registered owners, unless those registered owners offer reasonable indemnity
to the Indenture Trustee (Indenture, Section 903). If they provide this
reasonable indemnity, the registered owners of a majority in principal amount of
any series of Debt Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred on the Indenture Trustee,
with respect to the Debt Securities of that series. However, if an event of
default under the Indenture relates to more than one series of Debt Securities,
only the registered owners of a majority in aggregate principal amount of all
affected series of Debt Securities, considered as one class, will have the right
to make that direction. Also, the direction must not violate any law or the
Indenture, and may not expose the Indenture Trustee to personal liability in
circumstances where its indemnity would not, in the Indenture Trustee's sole
discretion, be adequate (Indenture, Section 812).
No registered owner of Debt Securities of any series will have any
right to institute any proceeding under the Indenture, or any remedy under the
Indenture, unless:
(1) that registered owner has previously given to the Indenture
Trustee written notice of a continuing event of default with
respect to the Debt Securities of that series,
(2) the registered owners of a majority in aggregate principal amount
of the outstanding Debt Securities of all series in respect of
which an event of default under the Indenture exists, considered
as one class, have made written request to the Indenture Trustee,
and have offered reasonable indemnity to the Indenture Trustee to
institute that proceeding in its own name as trustee, and
(3) the Indenture Trustee has failed to institute any proceeding, and
has not received from the registered owners of a majority in
aggregate principal amount of the outstanding Debt Securities of
all series in respect of which an event of default under the
Indenture exists, considered as one class, a direction
12
inconsistent with that request, within 60 days after that notice,
request and offer (Indenture, Section 807).
However, these limitations do not apply to a suit instituted by a registered
owner of a Debt Security for the enforcement of payment of the principal of or
any premium or interest on that Debt Security on or after the applicable due
date specified in that Debt Security (Indenture, Section 808).
FPL Group Capital is required to deliver to the Indenture Trustee an
annual statement as to its compliance with all conditions and covenants under
the Indenture (Indenture, Section 606).
MODIFICATION AND WAIVER. Without the consent of any registered owner of
Debt Securities, FPL Group Capital and the Indenture Trustee may amend or
supplement the Indenture for any of the following purposes:
(1) to provide for the assumption by any permitted successor to FPL
Group Capital of FPL Group Capital's obligations under the
Indenture and the Debt Securities in the case of a merger or
consolidation or a conveyance, transfer or lease of its assets,
(2) to add covenants of FPL Group Capital or to surrender any right or
power conferred upon FPL Group Capital by the Indenture,
(3) to add any additional events of default,
(4) to change, eliminate or add any provision of the Indenture,
provided that if that change, elimination or addition will
materially adversely affect the interests of the registered owners
of Debt Securities of any series or tranche, that change,
elimination or addition will become effective with respect to that
series or tranche only
(a) when the consent of the registered owners of Debt Securities
of that series or tranche has been obtained, or
(b) when no Debt Securities of that series or tranche remain
outstanding under the Indenture,
(5) to provide security for all but not a part of the Debt Securities,
(6) to establish the form or terms of Debt Securities of any other
series or tranche,
(7) to provide for the authentication and delivery of bearer
securities and the related coupons and for other matters relating
to those bearer securities,
(8) to accept the appointment of a successor Indenture Trustee with
respect to the Debt Securities of one or more series and to change
any of the provisions of the Indenture as necessary to provide for
the administration of the trusts under the Indenture by more than
one trustee,
(9) to add procedures to permit the use of a non-certificated system
of registration for the Debt Securities of all or any series or
tranche,
(10) to change any place where
(a) the principal of and premium, if any, and interest on all or
any series or tranche of Debt Securities are payable,
(b) all or any series or tranche of Debt Securities may be
transferred or exchanged, and
(c) notices and demands to or upon FPL Group Capital in respect
of Debt Securities and the Indenture may be served, or
12
(11) to cure any ambiguity or inconsistency or to add or change any
other provisions with respect to matters and questions arising
under the Indenture, provided those changes or additions may not
materially adversely affect the interests of the registered owners
of Debt Securities of any series or tranche (Indenture, Section
1201).
The registered owners of a majority in aggregate principal amount of
the Debt Securities of all series then outstanding may waive compliance by FPL
Group Capital with certain restrictive provisions of the Indenture (Indenture,
Section 607). The registered owners of a majority in principal amount of the
outstanding Debt Securities of any series may waive any past default under the
Indenture with respect to that series, except a default in the payment of
principal, premium, if any, or interest and a default with respect to certain
restrictive covenants or provisions of the Indenture that cannot be modified or
amended without the consent of the registered owner of each outstanding Debt
Security of that series affected (Indenture, Section 813).
In addition to any amendments described above, if the Trust Indenture
Act of 1939 is amended after the date of the Indenture in a way that requires
changes to the Indenture or in a way that permits changes to, or the elimination
of, provisions that were previously required by the Trust Indenture Act of 1939,
the Indenture will be deemed to be amended to conform to that amendment of the
Trust Indenture Act of 1939 or to make those changes, additions or eliminations.
FPL Group Capital and the Indenture Trustee may, without the consent of any
registered owners, enter into supplemental indentures to make that amendment
(Indenture, Section 1201).
Except for any amendments described above, the consent of the
registered owners of a majority in aggregate principal amount of the Debt
Securities of all series then outstanding, considered as one class, is required
for all other modifications to the Indenture. However, if less than all of the
series of Debt Securities outstanding are directly affected by a proposed
supplemental indenture, then the consent only of the registered owners of a
majority in aggregate principal amount of outstanding Debt Securities of all
directly affected series, considered as one class, is required. But, if FPL
Group Capital issues any series of Debt Securities in more than one tranche and
if the proposed supplemental indenture directly affects the rights of the
registered owners of Debt Securities of less than all of those tranches, then
the consent only of the registered owners of a majority in aggregate principal
amount of the outstanding Debt Securities of all directly affected tranches,
considered as one class, will be required. However, none of those amendments or
modifications may:
(1) change the dates on which the principal of or interest on a Debt
Security is due without the consent of the registered owner of
that Debt Security,
(2) reduce any Debt Security's principal amount or rate of interest
(or the amount of any installment of that interest) or change the
method of calculating that rate without the consent of the
registered owner of that Debt Security,
(3) reduce any premium payable upon the redemption of a Debt Security
without the consent of the registered owner of that Debt Security,
(4) change the currency (or other property) in which a Debt Security
is payable without the consent of the registered owner of that
Debt Security,
(5) impair the right to sue to enforce payments on any Debt Security
on or after the date that it states that the payment is due (or,
in the case of redemption, on or after the redemption date)
without the consent of the registered owner of that Debt Security,
(6) reduce the percentage in principal amount of the outstanding Debt
Security of any series or tranche whose owners must consent to an
amendment, supplement or waiver without the consent of the
registered owner of each outstanding Debt Security of that series
or tranche,
(7) reduce the requirements for quorum or voting of any series or
tranche without the consent of the registered owner of each
outstanding Debt Security of that series or tranche, or
13
(8) modify certain of the provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers
of past defaults with respect to the Debt Securities of any series
or tranche, without the consent of the registered owner of each
outstanding Debt Security affected by the modification.
A supplemental indenture that changes or eliminates any provision of
the Indenture that has expressly been included only for the benefit of one or
more particular series or tranches of Debt Securities, or that modifies the
rights of the registered owners of Debt Securities of that series or tranche
with respect to that provision, will not affect the rights under the Indenture
of the registered owners of the Debt Securities of any other series or tranche
(Indenture, Section 1202).
The Indenture provides that, in order to determine whether the
registered owners of the required principal amount of the outstanding Debt
Securities have given any request, demand, authorization, direction, notice,
consent or waiver under the Indenture, or whether a quorum is present at the
meeting of the registered owners of Debt Securities, Debt Securities owned by
FPL Group Capital or any other obligor upon the Debt Securities or any affiliate
of FPL Group Capital or of that other obligor (unless FPL Group Capital, that
affiliate or that obligor owns all Debt Securities outstanding under the
Indenture, determined without regard to this provision) will be disregarded and
deemed not to be outstanding.
If FPL Group Capital solicits any action under the Indenture from
registered owners of Debt Securities, FPL Group Capital may, at its option, by
signing a written request to the Indenture Trustee, fix in advance a record date
for determining the registered owners of Debt Securities entitled to take that
action. However, FPL Group Capital will not be obligated to do this. If FPL
Group Capital does do this, that action may be taken before or after that record
date, but only the registered owners of record at the close of business on that
record date will be deemed to be registered owners of Debt Securities for the
purposes of determining whether registered owners of the required proportion of
the outstanding Debt Securities have authorized that action. For these purposes,
the outstanding Debt Securities will be computed as of the record date. Any
action of a registered owner of any Debt Security under the Indenture will bind
every future registered owner of that Debt Security, or any Debt Security
replacing that Debt Security, with respect to anything that the Indenture
Trustee or FPL Group Capital do, fail to do, or allow to be done in reliance on
that action, whether or not that action is noted upon that Debt Security
(Indenture, Section 104).
RESIGNATION OF INDENTURE TRUSTEE. The Indenture Trustee may resign at
any time with respect to any series of Debt Securities by giving written notice
of its resignation to FPL Group Capital. Also, the registered owners of a
majority in principal amount of the outstanding Debt Securities of one or more
series of Debt Securities may remove the Indenture Trustee any time with respect
to the Debt Securities of that series, by delivering an instrument evidencing
this action to the Indenture Trustee and FPL Group Capital. The resignation or
removal of the Indenture Trustee and the appointment of a successor trustee will
not become effective until a successor trustee accepts its appointment.
Except with respect to an Indenture Trustee appointed by the registered
owners of Debt Securities, the Indenture Trustee will be deemed to have resigned
and the successor will be deemed to have been appointed as trustee in accordance
with the Indenture if:
(1) no event of default under the Indenture or event that, after
notice or lapse of time, or both, would become an event of default
under the Indenture exists, and
(2) FPL Group Capital has delivered to the Indenture Trustee a
resolution of its Board of Directors appointing a successor
trustee and that successor trustee has accepted that appointment
in accordance with the terms of the Indenture (Indenture, Section
910).
NOTICES. Notices to registered owners of Debt Securities will be sent
by mail to the addresses of those registered owners as they appear in the
security register for those Debt Securities (Indenture, Section 106).
TITLE. FPL Group Capital, the Indenture Trustee, and any agent of FPL
Group Capital or the Indenture Trustee, may treat the person in whose name a
Debt
14
Security is registered as the absolute owner of that Debt Security, whether or
not that Debt Security is overdue, for the purpose of making payments and for
all other purposes, regardless of any notice to the contrary (Indenture, Section
308).
GOVERNING LAW. The Indenture and the Debt Securities will be governed
by, and interpreted in accordance with, the laws of the State of New York,
without regard to New York's conflict of law principles, except to the extent
that the law of any other jurisdiction is mandatorily applicable.
REGARDING THE INDENTURE TRUSTEE. In addition to acting as Indenture
Trustee, The Bank of New York acts as security registrar and paying agent under
the Indenture, as Guarantee Trustee under the Guarantee Agreement described
under "Description of the Guarantee" below and would act as purchase contract
agent under a purchase contract agreement described under "Description of Stock
Purchase Contracts and Stock Purchase Units" below. FPL Group Capital also
maintains various banking and trust relationships with The Bank of New York.
DESCRIPTION OF THE GUARANTEE
GENERAL. This section briefly summarizes some of the provisions of the
Guarantee Agreement, dated as of June 1, 1999, between FPL Group and The Bank of
New York, as Guarantee Trustee. The Guarantee Agreement was executed for the
benefit of the Indenture Trustee, which holds the Guarantee Agreement for the
benefit of registered owners of the Debt Securities covered by the Guarantee
Agreement. This summary does not contain a complete description of the Guarantee
Agreement. You should read this summary together with the Guarantee Agreement
for a complete understanding of the provisions that may be important to you. The
Guarantee Agreement is on file with the SEC and is incorporated by reference in
this prospectus. In addition, the Guarantee Agreement is qualified as an
indenture under the Trust Indenture Act of 1939 and is therefore subject to the
provisions of the Trust Indenture Act of 1939. You should read the Trust
Indenture Act of 1939 for a complete understanding of provisions that may be
important to you.
Under the Guarantee Agreement, FPL Group absolutely, irrevocably and
unconditionally guarantees the prompt and full payment, when due and payable
(including upon acceleration or redemption), of the principal, interest and
premium, if any, on the Debt Securities that are covered by the Guarantee
Agreement to the registered owners of those Debt Securities, according to the
terms of those Debt Securities and the Indenture. Pursuant to the Guarantee
Agreement, all of the Debt Securities are covered by the Guarantee Agreement
except Debt Securities that by their terms are expressly not entitled to the
benefit of the Guarantee Agreement. All of the Offered Debt Securities will be
covered by the Guarantee Agreement. This guarantee is referred to in this
prospectus as the "Guarantee." FPL Group is only required to make these payments
if FPL Group Capital fails to pay or provide for punctual payment of any of
those amounts on or before the expiration of any applicable grace periods
(Guarantee Agreement, Section 5.01). In the Guarantee Agreement, FPL Group has
waived its right to require the Guarantee Trustee, the Indenture Trustee or the
registered owners of Debt Securities covered by the Guarantee Agreement to
exhaust their remedies against FPL Group Capital prior to bringing suit against
FPL Group (Guarantee Agreement, Section 5.06).
The Guarantee is a guarantee of payment when due (i.e., the guaranteed
party may institute a legal proceeding directly against FPL Group to enforce its
rights under the Guarantee Agreement without first instituting a legal
proceeding against any other person or entity). The Guarantee is not a guarantee
of collection (Guarantee Agreement, Section 5.01).
SECURITY AND RANKING. The Guarantee is an unsecured obligation of FPL
Group, and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of FPL Group. There is no limit on the amount of
other indebtedness, including guarantees, that FPL Group may incur or issue.
FPL Group is a holding company that derives substantially all of its
income from its operating subsidiaries. Therefore, the Guarantee is effectively
subordinated to debt and preferred stock incurred or issued by FPL Group's
subsidiaries. Neither the Indenture nor the Guarantee Agreement places any limit
on the amount of debt or preferred stock that FPL Group's subsidiaries may incur
or issue.
15
EVENTS OF DEFAULT. An event of default under the Guarantee Agreement
will occur upon the failure of FPL Group to perform any of its payment
obligations under the Guarantee Agreement (Guarantee Agreement, Section 1.01).
The registered owners of a majority of the aggregate principal amount of the
outstanding Debt Securities covered by the Guarantee Agreement have the right
to:
(1) direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee with respect to the
Guarantee Agreement, or
(2) direct the exercise of any trust or power conferred upon the
Guarantee Trustee under the Guarantee Agreement. (Guarantee
Agreement, Section 3.01).
The Guarantee Trustee must give notice of any event of default under
the Guarantee Agreement known to the Guarantee Trustee to the registered owners
of Debt Securities covered by the Guarantee Agreement within 90 days after the
occurrence of that event of default, in the manner and to the extent provided in
subsection (c) of Section 313 of the Trust Indenture Act of 1939, unless such
event of default has been cured or waived prior to the giving of such notice
(Guarantee Agreement, Section 2.07).
The Guarantee Trustee, the Indenture Trustee and the registered owners
of Debt Securities covered by the Guarantee Agreement have all of the rights and
remedies available under applicable law and may sue to enforce the terms of the
Guarantee Agreement and to recover damages for the breach of the Guarantee
Agreement. The remedies of each of the Guarantee Trustee, the Indenture Trustee
and the registered owners of Debt Securities covered by the Guarantee Agreement,
to the extent permitted by law, are cumulative and in addition to any other
remedy now or hereafter existing at law or in equity. At the option of any of
the Guarantee Trustee, the Indenture Trustee or the registered owners of Debt
Securities covered by the Guarantee Agreement, that person or entity may join
FPL Group in any lawsuit commenced by that person or entity against FPL Group
Capital with respect to any obligations under the Guarantee Agreement. Also,
that person or entity may recover against FPL Group in that lawsuit, or in any
independent lawsuit against FPL Group, without first asserting, prosecuting or
exhausting any remedy or claim against FPL Group Capital (Guarantee Agreement,
Section 5.06).
FPL Group is required to deliver to the Guarantee Trustee an annual
statement as to its compliance with all conditions under the Guarantee Agreement
(Guarantee Agreement, Section 2.04).
MODIFICATION. FPL Group and the Guarantee Trustee may, without the
consent of any registered owner of Debt Securities covered by the Guarantee
Agreement, agree to any changes to the Guarantee Agreement that do not
materially adversely affect the rights of registered owners. The Guarantee
Agreement also may be amended with the prior approval of the registered owners
of a majority in aggregate principal amount of all outstanding Debt Securities
covered by the Guarantee Agreement. However, the right of any registered owner
of Debt Securities covered by the Guarantee Agreement to receive payment under
the Guarantee Agreement on the due date of the Debt Securities held by that
registered owner, or to institute suit for the enforcement of that payment on or
after that due date, may not be impaired or affected without the consent of that
registered owner (Guarantee Agreement, Section 6.01).
REGARDING THE GUARANTEE TRUSTEE. In addition to acting as Guarantee
Trustee, The Bank of New York acts as Indenture Trustee under the Indenture and
would act as purchase contract agent under a purchase contract agreement. FPL
Group and its subsidiaries also maintain various banking and trust relationships
with The Bank of New York.
TERMINATION OF THE GUARANTEE AGREEMENT. The Guarantee Agreement will
terminate and be of no further force and effect upon full payment of all Debt
Securities covered by the Guarantee Agreement (Guarantee Agreement, Section
5.05).
GOVERNING LAW. The Guarantee Agreement will be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws principles thereunder, except to the extent that the law of
any other jurisdiction is mandatorily applicable (Guarantee Agreement, Section
5.07).
16
DESCRIPTION OF COMMON STOCK
GENERAL. The following statements describing FPL Group's common stock
are not intended to be a complete description. They are qualified in their
entirety by reference to FPL Group's Restated Articles of Incorporation
("Charter") and its bylaws, and where applicable, to the Restated Articles of
Incorporation of Florida Power & Light Company, and to the Mortgage and Deed of
Trust, dated as of January 1, 1944, between Florida Power & Light Company and
Bankers Trust Company, as Trustee, as amended and supplemented (the "Mortgage").
Reference is also made to the laws of the State of Florida.
FPL Group's authorized capital stock consists of 300,000,000 shares of
common stock, $.01 par value, and 100,000,000 shares of serial preferred stock,
$.01 par value. As of the date of this prospectus, 175,854,346 shares of common
stock were issued and outstanding and no shares of serial preferred stock were
issued and outstanding. See "Description of Common Stock--Preferred Share
Purchase Rights." The common stock has no preemptive, subscription or conversion
rights, and there are no redemption or sinking fund provisions applicable
thereto. The outstanding shares of common stock are, and when issued the shares
offered hereby will be, fully paid and nonassessable.
All outstanding common stock is listed on the NYSE and trades under the
symbol "FPL". The registrar and transfer agent for the common stock is Equiserve
Trust Company, N.A.
DIVIDEND RIGHTS. Each share of common stock is entitled to participate
equally with respect to dividends declared on the common stock out of funds
legally available for the payment thereof.
The Charter of FPL Group does not limit the dividends that can be paid
on the common stock. However, as a practical matter, the ability of FPL Group to
pay dividends on its common stock is dependent upon dividends paid to it by its
subsidiaries, primarily Florida Power & Light Company. Florida Power & Light
Company's ability to pay dividends is limited by restrictions contained in
Florida Power & Light Company's Restated Articles of Incorporation and in the
Mortgage. However, these restrictions do not currently limit Florida Power &
Light Company's ability to pay dividends to FPL Group.
VOTING RIGHTS AND NON-CUMULATIVE VOTING. In general, the holders of
common stock are entitled to one vote per share for the election of directors
and for other corporate purposes. The Charter:
(1) permits the shareholders to remove a director only for cause and
only by the affirmative vote of 75% in voting power of the
outstanding shares of common stock and other outstanding voting
stock, voting as a class;
(2) provides that a vacancy on the Board of Directors may be filled
only by the remaining directors;
(3) permits shareholders to take action only at an annual meeting, or
a special meeting duly called by certain officers, the Board of
Directors or the holders of a majority in voting power of the
outstanding shares of voting stock entitled to vote on the matter;
(4) requires the affirmative vote of 75% in voting power of the
outstanding shares of voting stock to approve certain Business
Combinations with an Interested Shareholder (as defined below) or
its affiliate, unless approved by a majority of the Continuing
Directors (as defined below) or, in certain cases, unless certain
minimum price and procedural requirements are met; and
(5) requires the affirmative vote of 75% in voting power of the
outstanding shares of voting stock to amend the by-laws or to
amend certain provisions of the Charter including those provisions
discussed in (1) through (4) above.
Such provisions may have significant effects on the ability of the shareholders
to change the composition of an incumbent Board of Directors or to benefit from
certain transactions which are opposed by an incumbent Board of Directors.
17
The term "Interested Shareholder" is defined in the Charter to include
a security holder who owns 10% or more in voting power of the outstanding shares
of voting stock, and the term "Continuing Director" is defined in the Charter to
include any director who is not an affiliate of an Interested Shareholder. The
above provisions dealing with Business Combinations involving FPL Group and an
Interested Shareholder may discriminate against a security holder who becomes an
Interested Shareholder by reason of the beneficial ownership of such amount of
common or other voting stock. The term "Business Combination" is defined in the
Charter to include:
(1) any merger or consolidation of FPL Group or any direct or indirect
majority-owned subsidiary with (a) an Interested Shareholder or
(b) any other corporation which is, or after such merger or
consolidation would be, an affiliate of an Interested Shareholder;
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition in one transaction or a series of transactions to or
with any Interested Shareholder or any affiliate of an Interested
Shareholder of assets of FPL Group or any direct or indirect
majority-owned subsidiary having an aggregate fair market value of
$10,000,000 or more;
(3) the issuance or transfer by FPL Group or any direct or indirect
majority-owned subsidiary in one transaction or a series of
transactions of any securities of FPL Group or any subsidiary to
any Interested Shareholder or any affiliate of any Interested
Shareholder in exchange for cash, securities or other property, or
a combination thereof, having an aggregate fair market value of
$10,000,000 or more;
(4) the adoption of any plan or proposal for the liquidation or
dissolution of FPL Group proposed by or on behalf of an Interested
Shareholder or an affiliate of an Interested Shareholder; or
(5) any reclassification of securities, including any reverse stock
split, or recapitalization, of FPL Group, or any merger or
consolidation of FPL Group with any of its direct or indirect
majority-owned subsidiaries or any other transaction which has the
direct or indirect effect of increasing the proportionate share of
the outstanding shares of any class of equity or convertible
securities of FPL Group or any direct or indirect wholly-owned
subsidiary which is directly or indirectly owned by any Interested
Shareholder or any affiliate of any Interested Shareholder.
The holders of common stock do not have cumulative voting rights, and
therefore the holders of more than 50% of a quorum (majority) of the outstanding
shares of common stock can elect all of FPL Group's directors. Unless otherwise
provided in the Charter or the by-laws or in accordance with applicable law, the
affirmative vote of a majority of the total number of shares represented at a
meeting and entitled to vote is required for shareholder action on a matter.
Voting rights for the election of directors or otherwise, if any, for any series
of the serial preferred stock, will be established by the Board of Directors
when such series is issued.
LIQUIDATION RIGHTS. After satisfaction of creditors and payments due
the holders of serial preferred stock, if any, the holders of common stock are
entitled to share ratably in the distribution of all remaining assets.
PREFERRED SHARE PURCHASE RIGHTS. The following statements describing
FPL Group's preferred share purchase rights (each, a "Right") are not intended
to be a complete description. They are qualified in their entirety by reference
to the form of Rights Agreement, dated as of July 1, 1996, between FPL Group and
Equiserve Trust Company, N.A., as successor Rights Agent, as amended by an
Amendment to Rights Agreement, dated as of July 30, 2000, each as filed with the
SEC.
On June 17, 1996, FPL Group's Board of Directors declared a dividend of
one Right for each outstanding share of common stock. Thereafter, until the
Distribution Date (as defined below), FPL Group will issue one Right with each
newly issued share of common stock. Each Right (prior to the expiration or
redemption of the Rights) will entitle the holder thereof to purchase from FPL
Group one-hundredth of a share of FPL Group's Series A Junior Participating
Preferred Stock, $.0l par value (Junior Preferred Shares), at an exercise price
of $120 per Right (Purchase Price), subject to adjustment. Until the
Distribution Date, the Rights are represented by the common
18
stock certificates, and are not exercisable or transferable apart from the
common stock. The Distribution Date is the earlier to occur of:
(1) the tenth day after the public announcement that a person or group
has acquired beneficial ownership of 10% or more of the common
stock or
(2) the tenth business day after a person commences, or announces an
intention to commence, a tender or exchange offer, the
consummation of which would result in the beneficial ownership by
a person or group of 10% or more of the common stock. At any time
before a person or group becomes a 10% holder, the Board of
Directors may extend the 10-day period.
Separate certificates evidencing the Rights will be mailed to holders of the
common stock as of the close of business on the Distribution Date. The Rights
are exercisable at any time after the Distribution Date, unless earlier
redeemed, or exchanged, and could then begin trading separately from the common
stock. The Rights do not have any voting rights and are not entitled to
dividends.
If a person or group becomes a 10% holder, each Right not owned by the
10% holder would become exercisable for the number of shares of common stock
which, at that time, would have a market value of two times the exercise price
of the Right. In the event that FPL Group is acquired in a merger or other
business combination transaction, or 50% or more of FPL Group's assets or
earning power are sold or otherwise transferred, after a person or group has
become a 10% holder, each Right will entitle its holder to purchase, at the
exercise price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction would have a market
value of two times the exercise price of the Right.
The Rights are redeemable by FPL Group's Board of Directors in whole,
but not in part, at $.01 per Right at any time prior to the time that a person
or group acquires beneficial ownership of 10% or more of the outstanding common
stock. The Rights will expire on June 30, 2006 (unless the expiration date is
extended or the Rights are earlier redeemed or exchanged as described below).
The Purchase Price, and the number of Junior Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution
(1) in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Junior Preferred Shares,
(2) as a result of the grant to holders of Junior Preferred Shares of
certain rights or warrants to subscribe for or purchase Junior
Preferred Shares at a price, or securities convertible into Junior
Preferred Shares with a conversion price, at less than the current
market price of Junior Preferred Shares or
(3) as a result of the distribution to holders of Junior Preferred
Shares of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Junior Preferred
Shares) or of subscription rights or warrants (other than those
referred to above).
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in the
Purchase Price. The number of Rights and the number of Junior Preferred Shares
purchasable upon exercise of each Right are also subject to adjustment in the
event of a stock split, subdivision, consolidation, combination or common stock
dividend on the common stock prior to the Distribution Date.
The Board of Directors of FPL Group may exchange the Rights at an
exchange ratio of one share of common stock per Right at any time that is
(1) after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 10% or more of the
outstanding common stock; and
(2) before the acquisition by a person or group of 50% or more of the
outstanding common stock.
19
The Rights have anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire FPL Group
without conditioning the offer on the redemption of the Rights or on the
acquisition of a certain number of Rights. The Rights beneficially owned by that
person or group may become null and void. The Rights should not interfere with
any merger or other business combination approved by the Board of Directors of
FPL Group, since the Rights may be redeemed by FPL Group at $.01 per Right prior
to the time that a person or group has acquired beneficial ownership of 10% or
more of the common stock.
The Junior Preferred Shares purchasable upon exercise of the Rights
will be entitled to cumulative quarterly dividends in preference to the common
stock at a rate per share equal to the greater of $10 and 100 times the dividend
declared on the common stock for such quarter. In the event of any merger,
consolidation or other transaction in which the shares of common stock are
exchanged, each Junior Preferred Share will be entitled to receive 100 times the
amount and type of consideration received per share of common stock. In the
event of a liquidation of FPL Group, the holders of Junior Preferred Shares will
be entitled to receive in preference to the common stock the greater of $100 per
share and 100 times the payment made per share of common stock. FPL Group has
the right to issue other serial preferred stock ranking prior to the Junior
Preferred Shares with respect to dividend and liquidation preferences. The
Junior Preferred Shares will be redeemable after June 30, 2006, at FPL Group's
option, in whole or in part, at a redemption price per share equal to the
greater of
(1) the per share Purchase Price and
(2) the then current market price of a Junior Preferred Share.
Each Junior Preferred Share will have 100 votes on all matters submitted to a
vote of the shareholders of FPL Group, voting together with the common stock.
The rights of the Junior Preferred Shares as to dividends, liquidation,
redemption and voting, and in the event of mergers and consolidations, are
protected by customary anti-dilution provisions. Because of the nature of the
dividend, liquidation, redemption and voting rights of the Junior Preferred
Shares, the value of the interest in a Junior Preferred Share purchasable upon
the exercise of each Right should approximate the value of one share of common
stock.
The Board of Directors of FPL Group may amend the Rights Agreement and
the Rights, without the consent of the holders of the Rights. However, any
amendment adopted after a person or group becomes a 10% holder may not adversely
affect the interests of holders of Rights.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
FPL Group may issue stock purchase contracts, including contracts that
obligate holders to purchase from FPL Group, and FPL Group to sell to these
holders, a specified number of shares of common stock at a future date or dates.
FPL Group Capital may also be a party to the stock purchase contracts. The
consideration per share of common stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference to a specific
formula set forth in the stock purchase contracts. The stock purchase contracts
may be issued separately or as a part of stock purchase units consisting of a
stock purchase contract and either Debt Securities or debt obligations of third
parties, including U.S. Treasury securities, that are pledged to secure the
holders' obligations to purchase the common stock under the stock purchase
contracts. The stock purchase contracts may require FPL Group and/or FPL Group
Capital to make periodic payments to the holders of some or all of the stock
purchase units or vice versa, and such payments may be unsecured or prefunded on
some basis. The stock purchase contracts may require holders to secure their
obligations under these stock purchase contracts in a specified manner.
A prospectus supplement will describe the terms of any stock purchase
contracts or stock purchase units being offered. The description in the
prospectus supplement will not necessarily be complete, and reference will be
made to the stock purchase contracts. Some of the important United States
Federal income tax considerations applicable to the stock purchase units and
stock purchase contracts will be discussed in the related prospectus supplement.
20
PLAN OF DISTRIBUTION
FPL Group and FPL Group Capital may sell the securities offered
pursuant to this prospectus ("Offered Securities"):
(1) through underwriters or dealers,
(2) through agents, or
(3) directly to one or more purchasers.
THROUGH UNDERWRITERS OR DEALERS. If FPL Group or FPL Group Capital uses
underwriters in the sale of the Offered Securities, the underwriters will
acquire the Offered Securities for their own account. The underwriters may
resell the Offered Securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The underwriters may sell the Offered Securities directly
or through underwriting syndicates represented by managing underwriters. Unless
otherwise stated in the prospectus supplement relating to the Offered
Securities, the obligations of the underwriters to purchase those Offered
Securities will be subject to certain conditions, and the underwriters will be
obligated to purchase all of those Offered Securities if they purchase any of
them. If FPL Group or FPL Group Capital uses a dealer in the sale, FPL Group or
FPL Group Capital will sell the Offered Securities to the dealer as principal.
The dealer may then resell those Offered Securities at varying prices determined
at the time of resale.
Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
THROUGH AGENTS. FPL Group or FPL Group Capital may designate one or
more agents to sell the Offered Securities. Unless otherwise stated in a
prospectus supplement, the agents will agree to use their best efforts to
solicit purchases for the period of their appointment.
DIRECTLY. FPL Group or FPL Group Capital may sell the Offered
Securities directly to one or more purchasers. In this case, no underwriters,
dealers or agents would be involved.
GENERAL INFORMATION. A prospectus supplement will state the name of any
underwriter, dealer or agent and the amount of any compensation, underwriting
discounts or concessions paid, allowed or reallowed to them. A prospectus
supplement will also state the proceeds to FPL Group or FPL Group Capital from
the sale of the Offered Securities, any initial public offering price and other
terms of the offering of those Offered Securities.
FPL Group and FPL Group Capital may authorize underwriters, dealers or
agents to solicit offers by certain institutions to purchase the Offered
Securities from FPL Group and FPL Group Capital at the public offering price and
on the terms described in the related prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future.
FPL Group and FPL Group Capital may have agreements to indemnify
underwriters, dealers and agents against certain civil liabilities, including
liabilities under the Securities Act of 1933.
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus from FPL Group's Annual Report on Form 10-K, as amended, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated by reference herein, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
Legal conclusions and opinions specifically attributed to counsel in
the documents incorporated by reference in this prospectus have been reviewed by
Steel Hector & Davis LLP, West Palm Beach, Florida, counsel to FPL Group and FPL
Group Capital, and are set forth on the authority of that firm as experts.
21
LEGAL OPINIONS
Steel Hector & Davis LLP, West Palm Beach, Florida and Thelen Reid &
Priest LLP, New York, New York, co-counsel to FPL Group and FPL Group Capital,
will pass upon the legality of the Offered Securities for FPL Group Capital and
FPL Group. Pillsbury Winthrop LLP, New York, New York, will pass upon the
legality of the Offered Securities for any underwriter, dealer or agent. Thelen
Reid & Priest LLP and Pillsbury Winthrop LLP may rely as to all matters of
Florida law upon the opinion of Steel Hector & Davis LLP. Steel Hector & Davis
LLP may rely as to all matters of New York law upon the opinion of Thelen Reid &
Priest LLP.
-----------------------------------
YOU SHOULD RELY ONLY ON THE INFORMATiON CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. NEITHER FPL GROUP
CAPITAL NOR FPL GROUP HAS AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. NEITHER FPL GROUP CAPITAL NOR FPL GROUP IS MAKING AN OFFER OF THESE
OFFERED SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
22
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the securities
being registered, other than underwriting and/or agents compensation, are:
Filing Fee for Registration Statement.................................$ 478,000
Legal and Accounting Fees.............................................$ 125,000*
Printing (S-3, Prospectus, Prospectus Supplement, etc.)...............$ 15,000*
Fees of the trustees..................................................$ 10,000*
Rating Agencies' Fees.................................................$ 75,000*
Miscellaneous.........................................................$ 12,000*
=========
Total .............................................................$ 715,000*
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Statutes generally permits each
registrant to indemnify its directors, officers, employees or other agents who
are subject to any third-party actions because of their service to the
registrant if such persons acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the registrant. If
the proceeding is a criminal one, such person must also have had no reasonable
cause to believe his conduct was unlawful. In addition, each registrant may
indemnify its directors, officers, employees or other agents who are subject to
derivative actions against expenses and amounts paid in settlement which do not
exceed, in the judgment of the board of directors, the estimated expense of
litigating the proceeding to conclusion, including any appeal thereof, actually
and reasonably incurred in connection with the defense or settlement of such
proceeding, if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
registrant. To the extent that a director, officer, employee or other agent is
successful on the merits or otherwise in defense of a third-party or derivative
action, such person will be indemnified against expenses actually and reasonably
incurred in connection therewith. This Section also permits each registrant to
further indemnify such persons by other means unless a judgment or other final
adjudication establishes that such person's actions or omissions which were
material to the cause of action constitute (1) a crime (unless such person had
reasonable cause to believe his conduct was lawful or had no reasonable cause an
action to believe it unlawful), (2) a transaction from which he derived an
improper personal benefit, (3) an action in violation of Florida Statutes
Section 607.0834 (unlawful distributions to shareholders), or (4) willful
misconduct or a conscious disregard for the best interests of the registrant in
a proceeding by or in the right of such registrant to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder.
Furthermore, Florida Statutes Section 607.0831 provides, in general,
that no director shall be personally liable for monetary damages to a registrant
or any other person for any statement, vote, decision, or failure to act,
regarding corporate management or policy, unless: (a) the director breached or
failed to perform his duties as a director; and (b) the director's breach of, or
failure to perform, those duties constitutes (i) a violation of criminal law,
unless the director had reasonable cause to believe his conduct was lawful or
had no reasonable cause to believe his conduct was unlawful, (ii) a transaction
from which the director derived an improper personal benefit, either directly or
indirectly, (iii) a circumstance under which the liability provisions of Florida
Statutes Section 607.0834 are applicable, (iv) in a proceeding by or in the
right of a registrant to procure a judgment in its favor or by or in the right
of a shareholder, conscious disregard for the best interest of a registrant, or
willful misconduct, or (v) in a proceeding by or in the right of someone other
than a registrant or a shareholder, recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property. The term
"recklessness," as used above, means the action, or omission to act, in
conscious disregard of a risk: (a) known, or so obvious that it should have been
known, to the director; and (b) known to the director, or so obvious that it
should have been known, to be so great as to make it highly probable that harm
would follow from such action or omission.
II-1
Each registrant's By-laws provide generally that such registrant shall,
to the fullest extent permitted by law, indemnify all directors and officers of
such registrant, directors, officers, or other employees serving as a fiduciary
of an employee benefit plan of such registrant, as well as any employees or
agents of such registrant or other persons serving at the request of such
registrant in any capacity with any entity or enterprise other than such
registrant to whom such registrant has agreed to grant indemnification (each, an
"Indemnified Person") to the extent that any such person is made a party or
threatened to be made a party or called as a witness or is otherwise involved in
any action, suit, or proceeding in connection with his status as an Indemnified
Person. Such indemnification covers all expenses incurred by any Indemnified
Person (including attorneys' fees) and all liabilities and losses (including
judgments, fines and amounts to be paid in settlement) incurred thereby in
connection with any such action, suit or proceeding.
In addition, each registrant carries insurance permitted by the laws of
Florida on behalf of directors, officers, employees or agents which may cover,
among other things, liabilities under the Securities Act.
ITEM 16. EXHIBITS.
1 - Form of Underwriting Agreement for the Offered Securities.
*4(a) - Restated Articles of Incorporation of FPL Group dated December 31,
1984, as amended through December 17, 1990 (filed as Exhibit 4(a)
to Post-Effective Amendment No. 5 to Form S-8, File No. 33-18669).
*4(b) - Amendment to FPL Group's Restated Articles of Incorporation dated
June 27, 1996 (filed as Exhibit 3 to Form 10-Q for the quarter
ended June 30, 1996, File No. 1-8841).
*4(c) - By-Laws of FPL Group as amended February 12, 2001 (filed as Exhibit
3(ii)a to Form 10-K for the year ended December 31, 2000, File
No. 1-8841).
*4(d) - Form of 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)
(filed as Exhibit 4 to Form 8-K dated June 17, 1996, File No.
1-8841).
*4(e) - Amendment to Rights Agreement, dated as of July 30, 2000, 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 the Rights Agent (filed as Exhibit 2 to Form 8-A/A dated July
31, 2000, File No. 1-8841).
*4(f) - Articles of Incorporation of FPL Group Capital dated July 31, 1985
(filed as Exhibit 3.1 to Registration Statement No. 33-6215).
*4(g) - By-Laws of FPL Group Capital dated January 4, 1988 (filed as
Exhibit 4(b) to Registration Statement No. 33-69786).
*4(h) - Restated Articles of Incorporation of Florida Power & Light Company
dated March 23, 1992 (filed as Exhibit 3(i)a to Form 10-K for the
year ended December 31, 1993, File No. 1-3545).
*4(i) - Amendment to Florida Power & Light Company's Restated Articles of
Incorporation dated March 23, 1992 (filed as Exhibit 3(i)b to Form
10-K for the year ended December 31, 1993, File No. 1-3545).
*4(j) - Amendment to Florida Power & Light Company's Restated Articles of
Incorporation dated May 11, 1992 (filed as Exhibit 3(i)c to Form
10-K for the year ended December 31, 1993, File No. 1-3545).
*4(k) - Amendment to Florida Power & Light Company's Restated Articles of
Incorporation dated March 12, 1993 (filed as Exhibit 3(i)d to Form
10-K for the year ended December 31, 1993, File No. 1-3545).
II-2
*4(l) - Amendment to Florida Power & Light Company's Restated Articles of
Incorporation dated June 16, 1993 (filed as Exhibit 3(i)e to Form
10-K for the year ended December 31, 1993, File No. 1-3545).
*4(m) - Amendment to Florida Power & Light Company's Restated Articles of
Incorporation dated August 31, 1993 (filed as Exhibit 3(i)f to
Form 10-K for the year ended December 31, 1993, File No. 1-3545).
*4(n) - Amendment to Florida Power & Light Company's Restated Articles of
Incorporation dated November 30, 1993 (filed as Exhibit 3(i)g to
Form 10-K for the year ended December 31, 1993, File No. 1-3545).
*4(o) - Bylaws of Florida Power & Light Company dated May 11, 1992 (filed
as Exhibit 3 to Form 8-K dated May 1, 1992 (File No. 1-3545).
*4(p) - Mortgage and Deed of Trust dated as of January 1, 1944, and One
hundred-one Supplements thereto, between Florida Power & Light
Company and Bankers Trust Company, Trustee (the "Mortgage") (filed
as Exhibit B-3, File No. 2-4845; Exhibit 7(a), File No. 2-7126;
Exhibit 7(a), File No. 2-7523; Exhibit 7(a), File No. 2-7990;
Exhibit 7(a), File No. 2-9217; Exhibit 4(a)-5, File No. 2-10093;
Exhibit 4(c), File No. 2-11491; Exhibit 4(b)-1, File No. 2-12900;
Exhibit 4(b)-1, File No. 2-13255; Exhibit 4(b)-1, File No. 2-13705;
Exhibit 4(b)-1, File No. 2-13925; Exhibit 4(b)-1, File No. 2-15088;
Exhibit 4(b)-1, File No. 2-15677; Exhibit 4(b)-1, File No. 2-20501;
Exhibit 4(b)-1, File No. 2-22104; Exhibit 2(c), File No. 2-23142;
Exhibit 2(c), File No. 2-24195; Exhibit 4(b)-1, File No. 2-25677;
Exhibit 2(c), File No. 2-27612; Exhibit 2(c), File No. 2-29001;
Exhibit 2(c), File No. 2-30542; Exhibit 2(c), File No. 2-33038;
Exhibit 2(c), File No. 2-37679; Exhibit 2(c), File No. 2-39006;
Exhibit 2(c), File No. 2-41312; Exhibit 2(c), File No. 2-44234;
Exhibit 2(c), File No. 2-46502; Exhibit 2(c), File No. 2-48679;
Exhibit 2(c), File No. 2-49726; Exhibit 2(c), File No. 2-50712;
Exhibit 2(c), File No. 2-52826; Exhibit 2(c), File No. 2-53272;
Exhibit 2(c), File No. 2-54242; Exhibit 2(c), File No. 2-56228;
Exhibits 2(c) and 2(d), File No. 2-60413; Exhibits 2(c) and 2(d),
File No. 2-65701; Exhibit 2(c), File No. 2-66524; Exhibit 2(c),
File No. 2-67239; Exhibit 4(c), File No. 2-69716; Exhibit 4(c),
File No. 2-70767; Exhibit 4(b), File No. 2-71542; Exhibit 4(b),
File No. 2-73799; Exhibits 4(c), 4(d) and 4(e), File No. 2-75762;
Exhibit 4(c), File No. 2-77629; Exhibit 4(c), File No. 2-79557;
Exhibit 99(a) to Post-Effective Amendment No. 5 to Form S-8, File
No. 33-18669; Exhibit 99(a) to Post-Effective Amendment No. 1 to
Form S-3, File No. 33-46076; Exhibit 4(b) to Form 10-K for the year
ended December 31, 1993, File No. 1-3545; Exhibit 4(i) to Form 10-Q
for the quarter ended June 30, 1994, File No. 1-3545; Exhibit 4(b)
to Form 10-Q for the quarter ended June 30, 1995, File No. 1-3545;
Exhibit 4(a) to Form 10-Q for the quarter ended March 31, 1996,
File No. 1-3545; Exhibit 4 to Form 10-Q for the quarter ended June
30, 1998, File No. 1-3545; Exhibit 4 to Form 10-Q for the quarter
ended March 31, 1999, File No. 1-3545; Exhibit 4(f) to Form 10-K
for the year ended December 31, 2000, File No. 1-3545; and Exhibit
4(g) to Form 10-K for the year ended December 31, 2000, File No.
1-3545).
*4(q) - Indenture, dated as of June 1, 1999, between FPL Group Capital
and The Bank of New York, as Trustee (filed as Exhibit 4(a) to Form
8-K dated July 16, 1999, File No. 1-8841).
*4(r) - Guarantee Agreement between FPL Group (as Guarantor) and The Bank
of New York (as Guarantee Trustee) dated as of June 1, 1999 (filed
as Exhibit 4(b) to Form 8-K dated July 16, 1999, File No. 1-8841).
*4(s) - Officer's Certificate of FPL Group Capital, dated June 29, 1999,
creating the 6 7/8% Debentures, Series due June 1, 2004 (filed as
Exhibit 4(c) to Form 8-K dated July 16, 1999, File No. 1-8841).
*4(t) - Officer's Certificate of FPL Group Capital, dated June 29, 1999,
creating the 7 3/8% Debentures, Series due June 1, 2009 (filed as
Exhibit 4(d) to Form 8-K dated July 16, 1999, File No. 1-8841).
II-3
*4(u) - Officer's Certificate of FPL Group Capital, dated September 7,
1999, creating the 7 5/8% Debentures, Series due September 15, 2006
(filed as Exhibit 4 to the Form 10-Q for the quarter ended
September 30, 1999, File No. 1-8841).
*4(v) - Officer's Certificate of FPL Group Capital, dated May 11, 2001,
creating the 6 1/8% Debentures, Series due May 15, 2007 (filed as
Exhibit 4 to the Form 10-Q for the quarter ended June 30, 2001,
File No. 1-8841).
4(w) - Form of Officer's Certificate relating to the Offered Debt
Securities, including form of Offered Debt Securities.
4(x) - Form of Purchase Contract Agreement.
4(y) - Form of Pledge Agreement.
4(z) - Form of Remarketing Agreement.
5(a) - Opinion and Consent of Steel Hector & Davis LLP, counsel to FPL
Group and FPL Group Capital.
5(b) - Opinion and Consent of Thelen Reid & Priest LLP, co-counsel to FPL
Group and FPL Group Capital.
*12 - Computation of Ratio of Earnings to Fixed Charges (filed as
Exhibit 12(a) to Form 10-Q of FPL Group for the quarter ended
September 30, 2001, File No. 1-8841, and Exhibit 12(a) to Form 10-K
of FPL Group for the year ended December 31, 2000, File No.
1-8841).
23(a) - Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) - Consent of Steel Hector & Davis LLP (included in opinion, attached
hereto as Exhibit 5(a)).
23(c) - Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
24 - Powers of Attorney (included on the signature pages of this
registration statement).
25(a) - Statement of Eligibility on Form T-1 of The Bank of New York, as
Guarantee Trustee.
25(b) - Statement of Eligibility on Form T-1 of The Bank of New York, as
Indenture Trustee.
25(c) - Statement of Eligibility on Form T-1 of The Bank of New York as
purchase contract agent.
*Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and
II-4
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement,
provided, however, that the registrants need not file a post-effective amendment
to include the information required to be included by subsection (i) or (ii) if
such information is contained in periodic reports filed by a registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, which are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of FPL Group's Annual Report pursuant
to Section 13(a) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by either registrant of
expenses incurred or paid by a director, officer or controlling person of such
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant against which the claim is asserted
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-5
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named in this registration
statement, and each of them severally, as his attorney-in-fact to sign in his
name and behalf, in any and all capacities stated below and to file with the
Securities and Exchange Commission, any and all amendments, including
post-effective amendments, to this registration statement, and the registrant
hereby also appoints each such agent for service as its attorney-in-fact with
like authority to sign and file any such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, FPL Group,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Juno Beach, State of Florida, on the 19th day of
December, 2001.
FPL GROUP, INC.
By: /s/ James L. Broadhead
-------------------------------
James L. Broadhead
Chairman of the Board and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ James L. Broadhead Chairman of the Board and Director December 19, 2001
-------------------------------
James L. Broadhead
/s/ Lewis Hay III President, Chief Executive Officer December 19, 2001
-------------------------------
Lewis Hay III and Director (Principal Executive
Officer)
/s/ Moray P. Dewhurst Vice President, Finance and Chief December 19, 2001
-------------------------------
Moray P. Dewhurst Financial Officer (Principal
Financial Officer)
/s/ K. Michael Davis Controller and Chief Accounting December 19, 2001
-------------------------------
K. Michael Davis Officer (Principal Accounting
Officer)
/s/ H. Jesse Arnelle Director December 19, 2001
-------------------------------
H. Jesse Arnelle
/s/ Sherry S. Barrat Director December 19, 2001
-------------------------------
Sherry S. Barrat
Signature Title Date
--------- ----- ----
/s/ Robert M. Beall, II Director December 19, 2001
-------------------------------
Robert M. Beall, II
Director
-------------------------------
J. Hyatt Brown
/s/ Armando M. Codina Director December 19, 2001
-------------------------------
Armando M. Codina
/s/ Willard D. Dover Director December 19, 2001
-------------------------------
Willard D. Dover
/s/ Alexander W. Dreyfoos Jr. Director December 19, 2001
-------------------------------
Alexander W. Dreyfoos Jr.
/s/ Paul J. Evanson Director December 19, 2001
-------------------------------
Paul J. Evanson
/s/ Frederic V. Malek Director December 19, 2001
-------------------------------
Frederic V. Malek
/s/ Paul R. Tregurtha Director December 19, 2001
-------------------------------
Paul R. Tregurtha
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named in this registration
statement, and each of them severally, as his attorney-in-fact to sign in his
name and behalf, in any and all capacities stated below and to file with the
Securities and Exchange Commission, any and all amendments, including
post-effective amendments, to this registration statement, and the registrant
hereby also appoints each such agent for service as its attorney-in-fact with
like authority to sign and file any such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, FPL Group
Capital Inc certifies that it has reasonable grounds to believe that it meets
all requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Juno Beach, State of Florida, on the 19th day of
December, 2001.
FPL GROUP CAPITAL INC
By: /s/ Lewis Hay III
----------------------------------
Lewis Hay III
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Lewis Hay III President, Chief Executive Officer December 19, 2001
------------------------------------
Lewis Hay III and Director (Principal Executive
Officer)
/s/ Moray P. Dewhurst Senior Vice President, Finance, December 19, 2001
------------------------------------
Moray P. Dewhurst Chief Financial Officer and Director
(Principal Financial Officer)
/s/ K. Michael Davis Controller and Chief Accounting December 19, 2001
------------------------------------
K. Michael Davis Officer (Principal Accounting
Officer)
/s/ James L. Broadhead Director December 19, 2001
------------------------------------
James L. Broadhead
EXHIBIT INDEX
1 Form of Underwriting Agreement for the Offered Securities.
4(w) Form of Officer's Certificate relating to the Offered Debt Securities,
including form of Offered Debt Securities.
4(x) Form of Purchase Contract Agreement.
4(y) Form of Pledge Agreement.
4(z) Form of Remarketing Agreement.
5(a) Opinion and Consent of Steel Hector & Davis LLP, counsel to FPL Group
and FPL Group Capital.
5(b) Opinion and Consent of Thelen Reid & Priest LLP, co-counsel to FPL
Group and FPL Group Capital.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Consent of Steel Hector & Davis LLP (included in opinion, attached
hereto as Exhibit 5(a)).
23(c) Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
24 Powers of Attorney (included on the signature pages of this
registration statement).
25(a) Statement of Eligibility on Form T-1 of The Bank of New York, as
Guarantee Trustee.
25(b) Statement of Eligibility on Form T-1 of The Bank of New York, as
Indenture Trustee.
25(c) Statement of Eligibility on Form T-1 of The Bank of New York, as
purchase contract agent.